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A temporary layoff occurs when an employer cuts back or stops an employee’s work without ending their employment relationship, including, for example, laying off an employee when there is a shortage of work. In Ontario, the Employment Standards Act, 2000 (“ESA”) sets out that a temporary layoff can last:

  • Not more than 13 weeks of layoff in any period of 20 consecutive weeks; or
  • More than 13 weeks in any period of 20 consecutive weeks, but less than 35 weeks of layoff in any period of 52 consecutive weeks (with additional obligations from the employer).

It is important to keep in mind that not every employer is able to rely on temporarily laying off their employees as layoffs are, generally speaking, aimed at businesses that are cyclical in nature and where an employee and employer are found to have agreed to layoffs as a condition of employment.

The ESA defines a termination as the following:

  • An employee is terminated if an employer dismisses or stops employing the employee, including where the employee is no longer employed due to the bankruptcy or insolvency of the employer.

Generally, when an employer terminates the employment of an employee, they must accordingly provide the employee with either written notice of termination, termination pay, or a combination of both, as well as severance pay (if applicable). Employers often need to provide significantly more payment than what is prescribed under the ESA as they are often subject to common law reasonable notice requirements.

It is important to note that on May 29, 2020, the Government of Ontario introduced Ontario Regulation 228/20 – Infectious Disease Emergency Leave. This Regulation permits a temporary layoff to be converted to a leave. During the leave, the timelines for layoffs as set out under the ESA do not apply as you are considered to on a job-protected leave instead of laid off. This leave applies during the duration of the COVID-19 Period, which is expected to end on January 1, 2022. Beginning on January 2, 2022, treatment of the legislation in relation to temporary layoffs and constructive dismissals will resume as previously applied before COVID-19.

If you are unsure whether you have been fired or laid-off, or if you have any questions regarding layoffs, wrongful dismissal, or constructive dismissal, especially during the COVID-19 era and are seeking legal advice please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to khayward@sultanlawyers.com.

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