COVID-19 Tip #14: Temporary Layoffs
Typically, under employment standards legislation, a temporary layoff longer than a specified period is considered a permanent layoff (i.e., requiring an employer to provide employees with written working notice of termination and/or to pay termination and severance pay). This post provides a quick review of the jurisdictions that have extended or created exemptions from the temporary layoff periods in response to COVID-19.
Effective as of June 22, 2020, the time period for a temporary layoff was temporarily extended by up to six months.
- For employees laid off prior to March 31, 2020, the time period is extended by six months or to December 30, 2020, whichever occurs first.
- For employees laid off between March 31, 2020, and September 30, 2020, the time period is extended until December 30, 2020, unless a later recall date is provided in a written notice at the time of the layoff.
- Initially, the maximum time for temporary layoffs was increased to 120 consecutive days, where the layoff occurred as a result of COVID-19 and is underway on or after March 17, 2020.
- Effective June 18, 2020, employees laid off for reasons related to COVID-19, are deemed to be terminated when laid off for more than 180 consecutive days. Note: A permanent amendment to the temporary layoff provision is included in Bill 32, Restoring Balance in Alberta’s Workplaces Act, 2020. Bill 32 is currently at second reading.
- Initially, a temporary layoff longer than 16 weeks in any 20-week period was considered a permanent layoff.
- The regulation was subsequently amended to extend temporary layoffs related to the COVID-19 to 24 weeks in any period of 28 weeks, until August 30, 2020. The extension only applies to layoffs beginning before June 1, 2020.
- Regulation 15/2020 added an exemption from a provision that deems a lay-off for a total of 8 weeks in a 16-week period to be a termination of employment.
- The period from March 1, 2020 until the day on which the COVID-19-related state of emergency is terminated is not included when determining whether an employee has been laid off for one or more periods exceeding 8 weeks (in total) within a 16-week period.
- Per Regulation 228/20, employees whose hours of work are temporarily reduced/eliminated, or wages are temporarily reduced by the employer due to COVID-19 from March 1, 2020 until six weeks after the Ontario government’s emergency order is rescinded:
- are exempt from the temporary layoff provisions in the Employment Standards Act, 2000 except where the lay off is due to a permanent discontinuance of all of the employer’s business at an establishment; and
- are not considered to be constructively dismissed.
Ed. Note: Ontario has subsequently extended this exemption until January 2, 2021. See COVID-19 Tip #17: Ontario Extends Infectious Disease Emergency Leave.
- Regulation 62/2020 established:
- an open ended period during a public emergency, when an employer can temporarily lay off employees;
- a grace period of two weeks, should the public emergency end while the layoff is in effect, in which the employer can plan and transition employees to work.