I’ve written before about why employers have kicked the can of workplace restructure down the road using Infectious Disease Emergency Leave (“IDEL”) hint: because they could without incurring termination cost.
When IDEL expires (currently in July but will the government extend the leave period?) what happens? Well, the answer is remarkably complex but simplified by looking at an employee’s entitlements through two separate lenses. Under the ESA, the employment would be deemed to be terminated if there is no recall within the time period provided by ESA. The recall clock starts on the date IDEL ends. At common-law, employees always had the right to commence actions for constructive dismissal but many have not. Have they condoned the employer’s conduct ending such claims? Is the employment contract frustrated by government ordered closures? Consider this: How can an employee have waived their right to claim constructive dismissal or an employer claim frustration when the ESA deems the employment relationship to have continued and been terminated under the ESA after the expiry of the IDEL? If you are impacted by IDEL there’s only one thing to do…get excellent advice.