HR updates for Ontario employers: IDEL extended (again) and guidance released on employee electronic monitoring policies (finally)

Recent legal developments in Ontario will have employers updating their HR playbooks: from long-awaited details about employee electronic monitoring policies to changes in the province’s infectious disease emergency leave program (IDEL).

What you need to know

• Paid IDEL for employees has been extended until March 31, 2023.
• Deemed IDEL provisions expired on July 30, 2022 and were not extended, thus reinstating the standard termination, severance and layoff provisions from before the pandemic.
• The province published guidance on employee electronic monitoring policies, requiring organizations with 25 or more employees to update their policies.

Paid infection disease emergency leave extended

On July 21, 2022, the Ontario government filed O. Reg. 464/22 amending O. Reg 228/20 under Ontario’s Employment Standards Act, 2000 (ESA) to extend paid infectious disease emergency leave (IDEL) for employees until March 31, 2023. Paid IDEL was implemented in response to the COVID-19 pandemic. An employee is entitled to a total of three paid days of leave (or as may be reduced under the employee’s leave entitlements in their employment agreement).

IDEL is available to employees located in Ontario who are unable to work for certain reasons related to COVID-19, such as if they must quarantine due to a positive COVID-19 test, they are symptomatic or they must care for certain family members with COVID-19. An employer may require the employee to provide reasonable evidence that he or she is entitled to take paid IDEL, though employers cannot require a health certificate from qualified health practitioners.

Employers who provide paid IDEL may apply to the Ontario’s Workplace Safety and Insurance Board (WSIB) to be reimbursed up to $200 per day per employee. Applications to WSIB must be made within 120 days of when the employer provided the paid IDEL.

In addition to paid IDEL, employees continue to be entitled to unpaid IDEL. An employee is entitled to take unpaid IDEL for as long as the employee is not performing their duties due to COVID-19 and COVID-19 is designated as an infectious disease. The Ontario government has given no indication as to when COVID-19 may no longer be deemed an infectious disease for purposes of the ESA. As with paid IDEL, employers may require employees to produce reasonable evidence that the employee is entitled to take unpaid IDEL.

Deemed IDEL provisions expire

The deemed IDEL provisions under the ESA expired on July 30, 2022 and were not extended. From March 1, 2020 to July 30, 2022, non-unionized employees were deemed to be on unpaid IDEL if they were not working due to their hours being temporarily reduced or eliminated due to COVID-19. Deemed IDEL meant that employees were not considered laid off or constructively dismissed if their work hours were reduced or eliminated.

Employers must note that the expiry of deemed IDEL means that the standard termination, severance and layoff provisions under the ESA are reinstated and govern employment relationships. Employers may no longer rely on deemed IDEL to try to protect against claims of constructive dismissal or complaints made to Ontario’s Ministry of Labour, Training and Skills Development (the MOL), although we await the final word on this issue from the courts. Employers should consider this development if they are still relying on the deemed IDEL provisions with respect to employees with reduced or eliminated hours.

Updates on electronic monitoring policies

As part of the Working for Workers Act, 2022, the ESA was amended to add Part XI.1, “Written Policy on Electronic Monitoring”. These changes are reflected in the updated online ESA guide, to include additional guidance on the written policy on electronic monitoring of employees. They provide important context that employers have awaited since the legislation was first introduced in February.

Employers who as of January 1, 2022 had 25 or more employees must implement an electronic monitoring policy by October 11, 2022. From January 1, 2023, employers who have 25 or more employees on January 1 of any given year must implement an electronic monitoring policy by March 1 of that year.

The electronic monitoring policy must include a statement as to whether the employer engages in electronic monitoring of its employees. While not defined in the ESA, the guide notes that “electronic monitoring” includes the use of GPS to track the movement of an employee’s delivery vehicles, electronic sensors to track how quickly employees scan items at a store check-out and tracking websites that employees visit during working hours.

If the employer electronically monitors its employees, the electronic monitoring policy must include:

• a description of how the employer may electronically monitor employees;
• a description of the circumstances in which the employer may electronically monitor employees; and
• the purposes for which information obtained through electronic monitoring may be used.

Regardless of whether electronic monitoring occurs on employer issued devices, personal employee devices, in the office or remotely, any electronic monitoring must be disclosed. Employers should consider whether their workforce management practices constitute “electronic monitoring” and consult with counsel to resolve any uncertainties.

Notably, the electronic monitoring policy requirement does not entitle employees to any new privacy rights, nor does it provide a right for employees to be free from electronic monitoring. Rather, the ESA requirements appear to be intended to facilitate transparency between employers and employees with respect to monitoring practices.

Finally, the electronic monitoring policy must state when the policy was prepared and the date on which any changes to it were made. Other additional information may need to be included as prescribed, although no regulations with respect to the electronic monitoring policy have been promulgated to date. Where an electronic monitoring policy is required, it must be issued, followed and administered in accordance with the ESA’s provisions.