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HR Advice: Are Temporary Layoffs Allowed in Ontario?

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As businesses in Ontario continue to recover from the pandemic, employers may be wondering what their options are if they need to temporarily lay off employees. Fortunately, provincial and federal governments have methods in place to support businesses that seek to lay off staff. Employers that are not able to send staff to work from home or keep them on payroll while their businesses continue to recover might consider temporary layoffs instead of terminations, where possible.

What is the difference between a layoff and a temporary layoff?

A temporary layoff occurs when an employer reduces or stops an employee’s work without ending their employment and with the intention of recalling the employee to work in the near future. In Ontario, a work week is classified as a “week of layoff” when the employee earns less than half of their average weekly wage. An employer might temporarily lay off employees due to lack of work or, as with the coronavirus, due to a government order.

The goal of a temporary layoff is to respond to the fluctuating workforce needs of a business without constantly terminating and recruiting employees. Temporary layoffs allow businesses to retain already trained and experienced staff without wasting time and money on training new workers.

Alternatively, if an employee is temporarily laid off for a period longer than the maximum time stated in the employment standards legislation (see below), the employer will be considered to have permanently laid the employee off; this more commonly referred to as termination of employment. The employee will then usually be entitled to termination pay.

How do temporary layoffs work (and how long can you temporarily lay someone off)?

In Ontario, temporary layoffs are governed by the Employment Standards Act, 2000 (“ESA”). A temporary layoff can last up to 13 weeks within a 20-week period or up to 35 weeks within a 52-week period only in certain circumstances, such as if the employee continues to receive substantial payments or benefits. If a layoff exceeds the maximum time permitted under the ESA, the layoff is deemed to be a termination of employment.

The ESA does not require employers to provide employees with written notice of a temporary layoff, nor are they required to provide a reason for the layoff. However, employment contracts should always contain a temporary layoff clause.

Are temporary layoffs legal in Ontario?

Although the ESA sets out the basic rules for temporary layoffs, the ESA does not give employers the automatic right to enact them. Employers may temporarily lay off employees only if this is allowed by the employment contract, if there is an established custom or practice in the employer’s industry, or if the employer has the employee’s consent, otherwise, employees may elect to consider a temporary layoff to be a constructive dismissal. In this case, the employee will be entitled to termination pay and potentially other damages. An employee will likewise be entitled to termination pay if they are laid off for longer than the permitted temporary layoff period.

To avoid liability for constructive dismissal, employers should have well-drafted employment contracts that explicitly permit temporary layoffs. If the employment contract does not permit this, the employer should seek the employee’s consent before laying them off. If the employee does not give consent and the employer has no other choice, the employer should be aware of the risks of doing so.

Do you need advice on how to manage employees during the COVID-19 pandemic?

Whether you need clarification on how to temporarily lay off employees in Ontario or need help implementing employment contracts with temporary layoff clauses, our HR advisors can help you. Speak to our experts today and get the latest legislation updates and HR advice for your business: 1 (833) 247-3652.

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