Is A Layoff Still A Constructive Dismissal During The COVID-19 Pandemic?

Due to the COVID-19 outbreak and government mandated shutdowns, temporary layoffs shot up exponentially throughout 2020. Employers laid off staff in great numbers with the promise that they would return when the outbreak was lessened. We are still waiting.

On May 29, 2020, the Ontario Government issued the Infectious Disease Emergency Leave ("IDEL") regulation under the Employment Standards Act 2000 ("ESA"). The regulation provides that a temporary reduction or elimination of an employee's hours and/or wages for reasons related to COVID-19 does not constitute a constructive dismissal.¹ IDEL was meant in part to protect employers from claims for constructive dismissal by employees on temporary lay off. Under the ESA (and in the common law/judge-made law), an employee is constructively dismissed if the employer makes significant changes to the employee's terms and conditions of employment without the employee's consent, including a reduction in hours or wages.