* This article has been updated to include new changes as of October 19, 2020.
The COVID-19 crisis has forced most businesses to temporarily lay off employees. As the first wave of the pandemic seems to subside, provinces across Canada are taking steps to reopen their economies in phases.
It is important to put procedures in place as you prepare to get back in business and recall employees to work.
Understand the law on temporary layoffs in your province
The employment standard legislation in every province allows for a maximum permissible length for temporary layoffs. It is important to note that temporary layoffs that exceed the permissible length set down by law are deemed to be terminations of employment.
In Alberta, the maximum duration of a temporary layoff at present is 90 days total in a 120-day period. This applies to all layoffs that started on or after June 18, 2020. On the 91st day, the employment is considered to have ended and you must pay termination pay. But a temporary layoff in Alberta can be extended if a worker consents to receive wages or benefit payments in lieu of a fixed limit of the duration of a layoff.
If a layoff is due to COVID-19, separate rules allow employers to lay off employees for 180 consecutive days before it’s considered a termination.
In British Columbia, the acceptable length of a temporary layoff is 13 weeks in a 20 consecutive week period. For the pandemic, this was extended to a maximum of 24 weeks (extension was applicable till August 30, 2020) provided the employee consented to this arrangement. Currently, to extend a temporary layoff due to COVID-19, employers and employees can together apply to the Employment Standards Branch for a variance.
Previously under the ESA in Ontario, the maximum duration permitted for a temporary layoff was 13 weeks in a 20 consecutive week period. It could be less than 35 weeks in a 52 consecutive week period if the employer continued to provide some form of compensation, such as pay or benefits.
However, through Regulation 492/20, Ontario has got rid of temporary layoffs during the COVID-19 period (ends on January 2, 2021). As per this temporary amendment to the ESA, all non-unionized employees who have had their work hours or wages reduced due to the pandemic will not be considered temporarily laid off. They will be deemed to be on an Infectious Disease Emergency Leave.
Make a plan for recalling laid-off employees
Begin by analyzing the immediate needs of your business and identify workers critical for day-to-day operations.
Assess your workplace capacity. Think about how many employees you can safely recall to work while observing physical distancing and other health and safety measures. If it is not safe to bring back your entire staff at once, consider a phased return to full capacity.
When recalling employees who carry out similar jobs functions, consider objective criteria, such as:
- Performance (based on objective performance review information)
- Order of layoff
- Pre-COVID-19 regular work schedule
Recalling employees based on objective criteria will help reduce the risk of a discrimination claim.
Factor in human rights considerations. Under human rights legislation, you must not discriminate against your workers on the basis of any protected ground, such as physical or mental disability, age, race, sex (including pregnancy), sexual orientation, religion.
COVID-19 may be considered a disability for the purpose of human rights legislation. This is the stance taken by British Columbia’s Human Rights Commissioner and the Ontario Human Rights Commission.
Some employees may have disabilities that place them at higher risk from COVID-19. You may be required to accommodate those employees by letting them work from home or remain off work.
Prepare the recall notice as directed by employment standards
You must check whether the employment standards in your province require particular content for recall notices. For instance, Ontario and British Columbia require no statutory requirements. In Alberta though a recall notice must:
- Be in writing
- Be served on the employee
- State that the employee must return to work within 7 days of the date the recall notice is served on the employee
A recall notice should give employees sufficient notice to make arrangements to return to work. For example, if they need to travel back to town or arrange for childcare, or leave a temporary job.
Your recall notice should specify the date the employee is expected to return. However, provide flexibility to discuss the return date with the manager if the employee is reasonably unable to join work on the specified date.
The notice should ask the employee to confirm by email or telephone that they received the recall notice. It should be sent to the employee by courier (with signature confirmation of receipt) and email. You might also consider following up with a telephone call to confirm that your employee received the recall notice.
If you are recalling employees for a temporary period, specify the expected length of recall before temporary layoff resumes.
Know if you can change conditions of employment
Due to change in your operations, you may have to change the employment terms and conditions of your workers, including schedule and hours of work, salary and job responsibilities.
You should review employment contracts to decide whether you have contractual rights to change certain terms of employment. If you have no contractual right, major changes to terms and conditions of employment, such as salary or duties, may amount to constructive dismissal unless your employee consents to the changes.
Please note that in Ontario, a temporary reduction or elimination of an employee’s work hours or wages due to reasons related to COVID-19 will not be considered a constructive dismissal. This will be retroactive to March 1, 2020, and continue till the end of the COVID-19 period (January 2, 2021).