The COVID-19 pandemic is altering every aspect of our lives, and one of the most profoundly impacted areas continues to be employment and the workplace.
In September Statistics Canada reported — months after the lockdown — that more than one million Canadians remain permanently or temporarily laid off from their jobs. More than 700,000 individuals are still working fewer hours than during pre-COVID times.
For those workers still languishing in employment limbo on a temporary layoff, many questions remain: When will I be called back to the workforce? When can I earn a living again? Can I survive in this environment?
For those panicking, there may be options available to help you navigate your employment predicament, as well as bolster your financial security during these unprecedented times.
Here is a basic primer on your rights as an employee when your employer places you on a temporary layoff in response to the COVID-19 pandemic.
What is a temporary layoff?
A temporary layoff is a situation where an employer suspended your employment for a period of time, rather than permanently ending it.
A layoff usually occurs when a company hits a rough patch financially, or is forced to shutter a portion of its operation for a period of time due to unexpected circumstances. Outside of potentially paying employee benefits, an employer is not required to pay a worker’s salary while they are temporarily laid off.
The goal is for the employee to be returned to work once the situation improves or the company’s finances bounce back.
Is there a time limit on a temporary layoff during COVID-19?
Yes. A temporary layoff can last for a certain period of time, which varies between the provinces and territories. In Ontario, a layoff may last as long as 35 weeks in some cases, while B.C. allows a pause in employment for up to 13 weeks.
Those long-held limits have since been upended by the pandemic. In response to the impact of COVID-19 on workplaces and employment, provincial governments have added temporary provisions to extend the length of layoffs to reduce the financial burden on employers. In Ontario, a combination of regulations and standard rules now allow employers to lay off employees until as late as fall 2021.
Once the layoff period is exhausted and the employer fails to recall the employee, the employment relationship is considered ended and severance is owed.
Can I refuse a temporary layoff?
You can absolutely refuse a temporary layoff.
A layoff, including one that is related to COVID-19, is considered an illegal change to the terms of an individual’s employment. An employer does not have the right to make significant changes to an employee’s job, unless it is permitted through specific language in an employment contract or is an accepted practice within a particular industry.
Through a process known as constructive dismissal, an employee can interpret their layoff as an end to their time with their employer, and secure a complete severance package. For many employees, this can mean as much as 24 months’ pay.
It is imperative that you speak to an employment lawyer at my firm before embarking on a constructive dismissal. The team at Samfiru Tumarkin LLP can review the unique details of your job and history with your employer, and properly calculate the amount of severance that you are legally entitled to.
What happens if I am not called back to work from a layoff during the pandemic?
Before we answer that question, we need to explore another one: Do you want to go back to work?
If your goal is to return to your job, you should first follow up with your employer to find out what their plans are. If they intend to bring you back by a set date, you can wait out the process and hopefully return to previous duties when the green light is given.
If you do not want to return to work, or the chances of being recalled by your employer appear to be slim, you can choose to treat the layoff as a termination through, once again, a constructive dismissal.
Rather than put your life on hold waiting endlessly for a call or text from your employer that may never come, my team can help you resign from your job with potentially months of severance pay, based on your age, duties and length of service with the company.
My employer is bringing me back from a layoff, but at lower pay and reduced hours. Can they do that?
My firm has received calls, emails and messages from thousands of employees inquiring about the validity of various changes being thrust upon them by their employer during the pandemic. Some are being shifted to new work locations. Others are experiencing demotions or taking on a drastic change in their workloads. A concerning number of employers are suggesting to their staff that because government subsidies only cover a certain portion of their wages, they must accept a pay cut amounting to the remaining portion.
Simply put, your employer can’t make a major change to your job when recalling you from a temporary layoff. They must return you to the same position, pay, and hours you held before the layoff.
COVID-19 doesn’t change this fact, and neither do provincial regulations or federal subsidies.
If you are facing a notable adjustment to your job, you have two choices to make: pursue a constructive dismissal and walk away with a severance package, or accept the changes.
If you choose the latter, be forewarned: accepting a change to your employment now will likely remove your ability to do something about the next change that your employer puts into place. Also, even though you may accept a change, believing it is temporary, once accepted the change becomes fixed and you may find that your job has changed permanently. It is very risky to accept significant changes to terms of employment.
Are you on a temporary layoff due to COVID-19? Are unwanted changes being made to your job?
Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario or British Columbia. Get the advice you need – and the compensation your deserve – during this crisis
Lior Samfiru is an employment lawyer and partner at Samfiru Tumarkin LLP, one of Canada’s leading law firms specializing in employment law and disability claims.