On July 24, 2020, the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (the “Act”) was proclaimed and is now in effect.
The Act provides the Ontario government greater flexibility to extend, amend and revoke orders made under sections 7.0.2 or 7.1 of the Emergency Management and Civil Protection Act (“EMCPA”), even after the end of the declaration of emergency.
The declaration of emergency was terminated upon proclamation of the Act. As a result, orders enacted under the EMCPA and that were in effect on the date of proclamation will remain in effect for an initial period of 30 days, subject to any further extensions or amendments.
Under the Act, the Lieutenant Governor in Council (or a Minister, if authority is delegated) has the power to extend, amend and revoke the orders that remain in effect.
Orders may be extended for periods of 30 days at a time.
Orders may only be amended if:
- the amendment relates to one or more of the following subject matters:
- closing or regulating any place (whether private or public), including any business, office, school, hospital or other establishment or institution;
- providing for rules or practices that relate to workplaces or the management of workplaces, or authorizing the person responsible for a workplace to identify staffing priorities or to develop, modify and implement redeployment plans or rules or practices that relate to the workplace or the management of the workplace, including credentialing processes in a health care facility; or
- prohibiting or regulating gatherings or organized public events; and
- the amendment requires persons to act in compliance with the advice, recommendations or instructions of a public health official.
Notably, the Act also lists 14 orders that may not be amended.
The power to extend and amend orders is set to expire on July 24, 2021. However, these powers may be extended beyond the expiry date for up to an additional year.
Employers who were subject to the emergency orders enacted under the EMCPA will continue to operate under those orders, as Ontario takes appropriate steps to reopen. The extension of these orders will be particularly impactful for employers in the broader health care sector (i.e.: health service providers, long-term care homes, mental health and addiction centres, etc.), whose workforces continue to be subject to work deployment and staffing measures. The orders related to the phased reopening of Ontario businesses will also be important for all employers to monitor.
The termination of the declaration of emergency has implications for the Employment Standards Act, 2000 (“ESA”) and Ontario Regulation 228/20: Infectious Disease Emergency Leave (“O. Reg. 228/20”):
Declared Emergency Leave
An employee’s entitlement to Declared Emergency Leave in subsection 50.1(1.1)(a) of the ESA is available only during an emergency declared under the EMCPA. Therefore, at the end of the declaration of emergency, employees will likely be ineligible for Declared Emergency Leave under this subsection.
Deemed Infectious Disease Leave – O. Reg. 228/20
On May 29, 2020, the Legislative Assembly of Ontario passed O. Reg. 228/20, which made significant changes to the application of the ESA for non-unionized employees that have seen reductions in hours or wages as a result of the COVID-19 pandemic. Most significantly, non-unionized employees who have seen their hours reduced or eliminated or their wages reduced by their employers because of COVID-19 are deemed under the O. Reg. 228/20 to not be on a temporary layoff for the purposes of the ESA, and the reduction or elimination of hours or wages is deemed to not constitute a constructive dismissal for the purposes of the ESA.
(Please see our previous update regarding the O. Reg. 228/20: Infection Diseased Emergency Leave, which can be accessed here).
Under O. Reg 228/20, the “COVID-19 Period” ends 6 weeks after the termination of the declared emergency. As a result, at the end of the 6-week period, employees that continue to experience reduced hours or wages will begin a period of temporary layoff under the ESA’s normal layoff provisions (assuming such reduction meets the statutory threshold to be considered a temporary layoff). Further, the protection from constructive dismissal under the ESA granted by O. Reg 228/20 will no longer apply. Therefore, absent the passage of any additional regulations or legislative amendments, the application of the regular provisions of the ESA rules will return to normal on September 4, 2020.
We will continue to monitor developments related to the impact of the COVID-19 pandemic on the workplace and will post further updates as information becomes available.
For advice specific to your situation, consider contacting your regular lawyer at Rae Christen Jeffries LLP.