After more than two years, Ontario’s temporary layoff measure implemented in the early days of COVID-19 has ended. Now, experts says there could be a new wave of lawsuits from workers who were “left in limbo” during a temporary layoff.

When the pandemic hit in 2020, many workers were placed on temporary layoffs while companies weathered the initial lockdown storm.

But after more than a month, when it became clear that society wouldn’t be returning to normal anytime soon, Ontario enacted the Infectious Disease Emergency Leave (IDEL), retroactive to March 1, 2020, which lengthened the period of time an employer could legally keep a worker on unpaid leave under the Employment Standards Act (ESA).

Under normal circumstances, the ESA states that temporary layoffs can only last 13 weeks, or 35 weeks if the employer continues to provide the employee with benefits.

If the employee isn’t recalled after that period, they are considered terminated and the employer must pay severance.

IDEL lengthened that period indefinitely to accommodate the uncertainty of COVID-19. The program referred to this as “deemed” IDEL, where laid-off employees were automatically considered to be on IDEL if their employer had reduced or eliminated their hours due to COVID-19.

Just like a regular temporary layoff, workers on emergency leave could collect CERB or EI or even find other work while waiting to be called back from their leave.

But the pandemic measure kept being extended even as restrictions eased and people went back to work.

Deemed IDEL ended on July 30, 2022. Since then, workers have been able to take unpaid infectious disease leave only if they meet certain conditions relating to COVID-19, such as quarantine measures or medical treatment.

And while many workers who had been on deemed IDEL went back to their old jobs during the pandemic or found new ones, others watched the province extend the measure over and over until it ended, with still no return to work in sight.

That’s what happened to Mark.

Mark, whose full name is being withheld to protect his employment, was put on a temporary layoff along with many of his colleagues in the spring of 2020. He works in business training and development, and since travel and in-person work were no longer options, Mark understood that he would be out of work for a while. He used the opportunity to get some things done at home and spend time with his kids.

But as time went on, he and others at the company stayed at home, feeling in the dark about what would happen next.

CERB ran out, some of his coworkers were recalled, his kids went back to school, and IDEL was extended, along with Mark’s leave.

Some of his colleagues, in a similar position, gave up and moved on.

“There’s been a bit of an exodus over the past year and a half,” he said.

Initially Mark looked at the layoff as a positive thing. He was able to spend more time at home, helping his kids with remote learning. But over time it became a source of stress and affected his mental health.

“Your social fabric kinda breaks down,” he said.

In 2022, business travel finally began to pick up again, and Mark thought he might return to work.

But that didn’t happen.

When IDEL ended in July, he was put on a 35-week temporary layoff. When that layoff ends in April, he will have been on unpaid leave for three years.

“I don’t think they intend on bringing me back,” said Mark, who wonders if his employer is trying to avoid paying severance.

Mark consulted a lawyer, but hasn’t yet decided what to do.

IDEL protected employers, but left workers like Mark “in limbo,” said Lluc Cerda, an employment lawyer and associate at Samfiru Tumarkin LLP.

When the deemed IDEL measure ended, employers had three legal options, said Cerda. They could recall the employee from their layoff, terminate them, or put them on another temporary layoff.

If an employee was terminated after IDEL ended, they may be able to dispute their termination, said Cerda. IDEL was a job-protected leave just like maternity or bereavement leave, meaning employers generally can’t terminate workers when the leave ends.

If the employee wants to accept the termination, they may be able to negotiate a better severance package for this very reason, he said.

Though IDEL was intended to protect employers from constructive dismissal lawsuits, the measure only did so under the ESA, not under the common law, which is based on past court decisions and opinions.

Employment lawyers have been saying since the measure began that a temporary layoff under IDEL could be considered a constructive dismissal under the common law, which is when an employee argues they have been effectively terminated, and are therefore owed severance. Many lawsuits have been filed arguing just this.

The vast majority of civil cases filed are settled out of court, after taking into account previous decisions as an indication of where a case might land, said Cerda.

There have been three major court decisions regarding IDEL and constructive dismissal — two were in favour of the employee, and the third was in favour of the employer, but was appealed and overturned on a technicality.

There’s no telling how many people were affected by IDEL, and how many have grounds for constructive dismissal, said Cerda.

So far, the courts have agreed that a temporary layoff, even under IDEL, does not mean an employee can’t file for constructive dismissal, said employment lawyer Stuart Rudner, unless the employer had workers sign an agreement to the contrary, which many did not.

“We were all in this together at the beginning,” said Rudner. Workers were willing to sit tight for a bit while uncertainty reigned. But the longer the layoff, the less likely they were to give their employer the benefit of the doubt, he said.

Now that deemed IDEL has ended, Cerda thinks there will be a new wave of lawsuits, some for constructive dismissal, and others for wrongful dismissal if the employee was terminated after their layoff ended.

Rudner agrees. He noted that employees have two years after a layoff to sue for constructive dismissal, and for many of those laid off earlier in the pandemic that time may have passed. There was an uptick in claims in April and May for this very reason, he said.

But if someone is placed on a fresh temporary layoff after IDEL ends, they may have a new window to claim constructive dismissal, he said.

“There are potential claims out there and this is unique to Ontario,” he said. “That July 30 date can really change things.”