During the early stages of the pandemic, many employers chose to temporarily lay off staff in response to the economic impact of COVID-19 on their business.
While many businesses have returned to regular operations, several thousand employees continue to wait on layoffs nearly two years later.
As an employment lawyer, I have spoken with many laid-off employees in the last several months who have grown increasingly frustrated with their employers’ response — or lack thereof.
Their lives have been in limbo for the last two years, and the uncertainty around the prospect of returning to work has resulted in increased stress during an already uncertain time. Many have become less optimistic about the possibility of ever being recalled.
Some businesses may genuinely intend to recall their employees. Other businesses, however, may have used COVID-19 as an excuse to lay off employees without severance packages in hopes that they will resign, secure new employment and forfeit their right to severance pay.
READ MORE: Check the contract, talk to a lawyer: 5 things to do if you’re laid off temporarily
As the two-year legal limitation period to address their layoff may be about to expire, employees will have to decide whether to continue waiting to be recalled and risk potentially losing their right to pursue a legal claim against their employer for full compensation.
What is a temporary layoff?
A temporary layoff occurs when an employer suspends an employee’s duties and pay but does not officially end the employment relationship. The expectation is that the employee will one day be recalled back to work.
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What are my rights if I have been placed on a temporary layoff?
If you were placed on a temporary layoff without your consent, this would be considered a change in the terms of your employment. Once this happens, you can assert a claim for constructive dismissal. Claiming constructive dismissal would entitle you to severance pay, which can be up to 24 months’ pay.
Over the last two years, my firm, Samfiru Tumarkin LLP, has negotiated hundreds of severance packages for employees who were placed on temporary layoffs as a result of the COVID-19 pandemic.
READ MORE: HBC employee’s ‘status change’ a lesson in constructive dismissals: employment lawyer
How long do I have to act if I’ve been temporarily laid off?
Non-unionized employees have two years from the start of their layoff to pursue a legal claim against their employer for constructive dismissal.
Since most pandemic-related temporary layoffs took place in mid-March 2020, the end of the limitation period to file a legal claim for constructive dismissal against your employer is fast approaching.
The process of submitting a claim to the court takes time, so you should contact an employment lawyer, like the team at Samfiru Tumarkin LLP, as soon as possible to ensure the claim is filed before your two-year limitation period expires.
How do I know if my employer will recall me?
There is no guaranteed way to predict whether your employer will ask you back to work. But there are some signs that may suggest that your employer has no real intention of recalling you. For example, if your employer has recalled almost all of your colleagues but not you, or if your employer has hired your replacement or put a job posting for your position online, it is more than likely you won’t be recalled.
In my experience, this treatment is particularly common among older or longer service employees who are entitled to more significant termination packages.
READ MORE: Recalled to work? 5 things to consider before you go back to the job
Are there any circumstances in which a temporary layoff would be allowed?
Although a temporary layoff is illegal in most circumstances, it could be permitted if you accept it at the time, if you have accepted it in the past or if you signed an employment contract that allows it.
A temporary layoff could also be permissible if it is a commonly accepted industry-wide practice, such as with seasonal employment. Regardless of the situation, you should still speak to an employment lawyer before you accept a temporary layoff to learn about your rights and entitlements.
Were you placed on a temporary layoff at the start of the COVID-19 pandemic? Are you still waiting to be recalled and unsure of your options?
Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario, Alberta or British Columbia. Get the advice you need — and the compensation you deserve.
Fiona Martyn is an employment lawyer and associate at Samfiru Tumarkin LLP, Canada’s most positively reviewed law firm specializing in employment law and long-term disability claims. The firm provides free advice on Canada’s only Employment Law Show on TV and radio.