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COVID-19 hit the province in and around March 16, 2020. As a result, many businesses were forced to temporarily layoff their employees.

  • typically, an employer can only layoff and employee if it is directly permitted in your employment contract or implied as part of industry standards. As such, some employees started treating these layoffs as terminations.
  • “temporary layoffs” are also only permitted for 13 weeks (or 35 weeks if the employer maintained your benefits). If the employer does not call you back by that time, you can treat the layoff as a termination.
  • In order to prevent the above two things from happening, the province passed an emergency order on May 29, 2020, which did the following to the Employment Standards Act, 2000:
    • Stated that layoffs, change in hours, or pay reductions due to COVID-19 were not constructive dismissals;
    • Pressed pause on the 13-week (or 35 week) timelines so that employees could not claim terminations; and
    • Implemented a “Covid-19 Period” which starts March 1, 2020 and ends on the date that is 6 weeks after the day the emergency order was terminated.

      Many expect they will now be able to claim termination and severance pay if they are not recalled or if their hours are not increased.
    • On July 24, 2020, Ontario revoked that emergency order, which means the “Covid-19 Period” ends on September 4, 2020.

As such, employees have had that date circled in their calendars. Many expect they will now be able to claim termination and severance pay if they are not recalled or if their hours are not increased.

However, on September 3, 2020, the Province published this news statement, indicating that there will likely be a further extension until January 2, 2021. Until we know for sure, we would recommend employees ease off that send email button and speak to an employment lawyer to understand their options.

There are also other items to think about before claiming constructive dismissal. If you are terminated, you can be entitled to a statutory notice period and/or a common law notice period. Common law notice periods are much more generous, but they are subject to a duty to mitigate. If your employer has implied you will return soon, then treating the layoff as a termination may be a failure to mitigate.

Everyone’s situation is very different, and we highly recommend speaking to an employment lawyer before treating your layoff as a termination.

Author(s)

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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