By Stephanie Hughes
Aug. 17, 2020
Jobs are slowly returning to the Canadian economy. According to the latest Statistics Canada report, 419,000 jobs were added in July.
If you were temporarily laid off due to the COVID-19 shutdown, your job is probably one of them, and no doubt you have questions about issues such as job security and benefits.
The Star asked Kathryn Marshall, a Toronto employment lawyer with Milburn & Associates, to break down the employments rights of workers forced into a temporary layoff.
Can an employee on temporary layoff be terminated while on layoff?
Yes, but they have to give you notice.
“If you’re on a leave of absence as a result of COVID-19, (including falling ill or caring for a sick loved one) your employer can still terminate you,” says Marshall, but they have to give reasonable notice under the Employment Standards Act. Under this act, if you’ve had the job continuously for three months, your employer must give you either a written notice of termination, termination pay, or both.
Marshall says there are legitimate reasons an employee on temporary leave can be permanently laid off. These include if the employer’s business goes bankrupt or if the employer is forced to restructure the business due to the pandemic.
Marshall stresses the importance of reading through employment contracts or collective bargaining agreements to understand the full scope of entitlements set by an employer.
If you don’t have a clause in your employment contract about termination, it will go through a common law process. It’s then on the employer to give reasonable notice (or pay instead of notice). Reasonable notice varies on a case-by-case basis and a number of factors can determine reasonable notice, such as the employee’s age, their position, and how long they were employed with the company.
Marshall says some employers have used COVID-19 as an excuse to lay off people. She urges employees who suspect they’ve been singled out in this type of layoff to consult with an employment lawyer to see if they have a case.
If I’m recalled to work after a temporary layoff, could I be laid off again in the future?
Yes, as long as they follow the employment contract and legal standards.
Under normal circumstances, if an employer makes temporary layoffs without meeting the Employment Standards Act requirements, the employee can treat this as a “constructive dismissal” and resign. The employee would still have the ability to seek severance pay since the law treats constructive dismissal as a termination. A “constructive dismissal” happens when the employer makes a significant and unilateral change to a core term of the employment, such as failing to pay employees or cutting hours.
In the age of COVID-19, however, the Employment Standards Act has been amended so that temporary layoffs the employee had not agreed to are no longer considered a “constructive dismissal.” Instead, these employees are considered to be on an emergency leave of absence, meaning their employer must eventually reinstate them to their job. If they are not reinstated, then the employer is in breach of the act and the employee can file a complaint with the Ministry of Labour to seek reinstatement or claim severance pay.
It’s important to know that this amendment will only be in force until Sept. 4, after which the Employment Standards Act will go back to the previous rules surrounding temporary layoffs. After this time, employees who are still on a temporary layoff that doesn’t comply with the act’s rules can claim constructive dismissal and seek severance.
Do I still get access to benefits and can I contribute to my pension plan while I am temporarily laid off?
Usually, employees have a right to participate in benefits and pension plans during a leave of absence, and employers must continue to make contributions (unless the employee elects not to participate in the benefits or pension plans). During a temporary layoff period, however, employers are not required by law to continue making benefits or pension plan contributions.
The Ontario government defines a COVID-19-related layoff as a job-protected leave of absence, Marshall says, which would usually allow employees to continue to participate in benefits, pension and life insurance plans as well as accrue vacation time, though they are not required by law to hand out benefits.
Marshall advises employees to be flexible with their employer if you plan on returning to work or they could burn bridges. If you’re unsure about your situation and your entitlements, her advice is to consult an employment lawyer. Don’t feel pressured to sign or agree to something an employer puts in front of you, she says. Take any document home to read it through.
“Sitting down and having a consultation with a lawyer is not actually an intimidating thing,” says Marshall. “It’s mainly you figuring out what your rights are and what your options are.”
