On Friday, May 29, 2020, the Ontario Government introduced and passed a new regulation, ONTARIO REGULATION 228/20, under the Employment Standards Act (2000), ("ESA"), that bodes well for employers - it provides temporary relief from termination and severance provisions in the Employment Standards Act (ESA) for employers whose operations have been shut down or curtailed by COVID-19.
This new regulation allows that any temporarily lay off happening to a non-union employee or a reduction in non-union employee wages and/or hours due to COVID-19, are no longer being deemed as a termination of employment.
So if a layoff occurs in the absence of employer lay off rights being present in an employment contract, OR, if the employer temporarily reduces hours, or reduces wages, the employer is not obligated to provide ESA notice & severance to avoid a "constructive dismissal" claim. It would not be considered a constructive dismissal. (So the employer would not need "permission" or agreement from an employee to do so.)
So rather than being on a temporary layoff, an employee not working for their employer for COVID-19-related reasons, during the COVID-19 Period, is deemed to be on an unpaid leave of absence under the new provincial Emergency Infectious Diseases Leave provisions of the ESA which were enacted in March 2020.
Essentially "A complaint filed with the Ministry that a temporary reduction or elimination of an employee’s hours of work by the employer or a temporary reduction in an employee’s wages by the employer constitutes the termination or severance of the employee’s employment shall be deemed not to have been filed if the temporary reduction or elimination of hours or the temporary reduction in wages occurred during the COVID-19 period for reasons related to the designated infectious disease."
This will be applicable for the duration of the "COVID-19 period", and the "COVID-19 period means the period beginning on March 1, 2020 and ending on the date that is six weeks after the day that the declared provincial emergency is terminated or disallowed".
Link to the new regulation : - https://www.ontario.ca/laws/regulation/r20228