On September 3, 2020, Ontario announced that it had extended its freeze of temporary layoff limitations. Regular layoff rules had been set to resume on September 4, 2020. Pursuant to O. Reg. 492/20, this date has now been pushed back to January 2, 2021.
Ontario employers are ordinarily required to pay severance when workers are placed on layoff (i.e. provided no work or pay) for longer than 13 weeks in any 20-week period (subject to certain exceptions). When the COVID-19 pandemic struck, however, these traditional worker protections would have resulted in mass terminations of employment across Ontario, largely due to government-ordered shutdowns.
Through O. Reg. 228/20 (made public on May 29th), Ontario suspended the operation of normal temporary layoff rules. In their place, for the period between March 1 and September 4, 2020, any situation related to the pandemic where employee hours were temporarily reduced (or eliminated altogether) was deemed as unpaid “Infectious Disease Emergency Leave”. The deeming of InfectiousDisease Emergency Leave was retroactive; it overrode any prior temporary layoffs employers may have instituted going back to March 1, 2020.
What Does this Mean?
As a result of this extended freeze of the normal temporary layoff limitations, Ontario employers have much greater latitude to keep employees off work without triggering a dismissal (and incurring related severance costs). The consequence for workers, though, may be dire.
Consider an employee making $40,000.00 per year who was put off work without pay as of March 16, 2020. Here is how that worker could be treated under three different scenarios:
These scenarios assume the employer has a contractual right to put the worker on a layoff. Dates are calculated from March 16, 2020, based on full use of the applicable deemed Infectious Disease Emergency Leave period and, thereafter, a 13-week traditional layoff pursuant to the Employment Standards Act, 2000. No allowance is made for replacement income earned, either through temporary employment or government supports.
Few people can afford to remain without income or work for a 55-week period. Yet this is the exact situation many will now face. While income supports like the Canada Emergency Response Benefit (“CERB”) and Employment Insurance (“EI”) can help lessen the blow, the weeks and months ahead could be financially crippling for many workers.
Seek Legal Advice Before Acting
The state of employment law in Ontario has been continually shifting throughout the pandemic. If you have been placed on an extended layoff, and are concerned about your rights, be sure to speak with an employment lawyer prior to taking any action against your employer. The rules surrounding temporary layoffs and deemed dismissals are more complex than ever.
Likewise, Ontario employers should remain in close contact with employment counsel as the pandemic progresses. In recent months, employers have often been given very short notice of major legal changes (sometimes less than 24 hours). Knowing what may be coming, and being able to react accordingly, can help employers avoid unnecessary stress and cost.
Vey Willetts LLP is an Ottawa-based employment and labour law firm that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in Ottawa and across Ontario. 613-238-4430 or info@vwlawyers.ca