It is important to note that during a declared emergency if the employer is ordered to close or reduce operation by health or other authorities, employers may be able to temporarily lay off employees without liability under employment/labour standards legislation. In the current environment, employees may be inclined to accept the temporary layoff and maintain their connection to their employer rather than triggering a termination
Each case will be dependent on its own facts. A number of governments are proposing amendments to address the impact of COVID-19. We may see changes to help employers access temporary layoffs without fear of liability.
1. Manitoba temporary layoff COVID-19 measure
On March 27, 2020, the Manitoba government announced that it is adding a temporary exception to employment standards regulations to give employers more time to recall employees laid off as a result of COVID-19. This measure will provide flexibility to employers to recall employees once work picks up again after this difficult time period and avoid severing their employment.
Under current employment standards legislation, employees who have been laid off for eight or more weeks in a 16-week period are deemed to have been terminated and are entitled to wages in lieu of notice. Retroactive to March 1, 2020, any period of temporary layoff occurring after March 1, 2020, will not be counted toward the period after which a temporary layoff would become a permanent termination.
The minister noted the province will also take steps to support workers and will suspend the exception when the province begins to recover economically. Workers who are temporarily laid off may also have options to access streamlined federal employment benefits at this time.
2. Saskatchewan new temporary layoff notice measure during COVID-19 measure
On May 22, 2020, the Saskatchewan government filed The Employment Standards (Public Emergencies) Amendment Regulations, 2020 (No.2) (PDF), amending provincial law with respect to temporary layoffs and the notice required for group terminations by:
- establishing an open ended period an employer can temporarily lay off employees during a public emergency;
- establishing 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; and
- exempting employers from providing group termination notice to employees and any union during a public emergency, while maintaining the requirement to notify the Minister.
On March 19, 2020, the Saskatchewan government enacted The Employment Standards (Public Emergencies) Amendment Regulations, 2020. Among other things, the regulations give employers the ability to temporarily lay off employees during a public emergency period without providing notice or pay in lieu of notice under either the individual or group layoff or termination provisions of The Saskatchewan Employment Act, as long as the employer-initiated layoff is 12 weeks or less in a 16-week period.
If an employer lays off employees for a total of more than 12 weeks in a 16-week period, the employees are deemed to be terminated and are entitled to pay instead of notice as outlined in The Saskatchewan Employment Act. The notice calculation is made from the date on which the employee was laid off.
Normally, under the SEA, employees are entitled to notice if there is an interruption in work for more than six consecutive work days. This notice applies to the termination of employment and to temporary layoffs.
3. Alberta temporary COVID-19 layoff measure
Employers can now temporarily lay off employees for up to 120 days before termination is deemed to occur (and termination or group termination pay is required). The temporary layoff period was previously 60 days of layoff within any 120-day period. This is also a sensible change since employers are seeing the restrictions on their ability to operate extending to what may easily be more than 60 days (and now hopefully less than 120 days). This change is retroactive for any temporary layoffs related to COVID-19 that occurred on or after March 17. The change remains in place as long as government determines it is needed and the public health emergency order remains.
In addition, the group termination provisions do not apply during the pandemic. These provisions required enhanced termination notice to affected employees, any unions and the Minister of Labour when 50 or more employees are terminated from a single location within a four-week period.
On May 14, 2020, the Alberta government issued Ministerial Order No. 2020-27, which provides clarification on the maximum length of layoffs permitted under the Employment Standards Code as a result of COVID-19. The new order clarifies that a layoff can be for up to 120 days:
- where the layoff notice is given to the employee on or after March 17, 2020; or
- if it was a result of COVID-19 and commenced prior to March 17, 2020.
On June 18, 2020, the Alberta government introduced Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act which proposes changes to the Employment Standards Code, among other things. Proposed changes include the extension of the permissible temporary layoff period from 120 days to 180 days for employees who have been temporarily laid off for reasons related to COVID-19.
On June 26, 2020, The COVID-19 Pandemic Response Statutes Amendment Act received royal assent and has made a number of changes to employment standards law in the province, including increasing the temporary layoff period from 120 days to 180 days for employees who have been laid off for reasons related to COVID-19,
4. British Columbia temporary COVID-19 measures [updated June 25]
The Employment Standards Branch (ESB) published guidelines about the impacts of COVID-19 on Sections 63 (individual terminations), 64 (group terminations), and 65 (exceptions to individual and group terminations) of British Columbia’s Employment Standards Act, as well as a bulletin: Quitting, Getting Fired or Laid Off.
Among other things, the ESB stated its position that individual and group notice of termination required under sections 63 and 64 of the Employment Standards Act may not be required, if business closures or staffing reductions are due to the current COVID-19 pandemic and the circumstances have made the employee’s work impossible to perform. Whether work is “impossible to perform” should be determined on a case by case basis, and would not ordinarily apply in circumstances where the work can be done in alternative ways (i.e. working remotely).
The ESB’s policy guidelines and statements do not have the force of law and are not binding on the Employment Standards Tribunal in any adjudication, though they may be reviewed as part of an adjudication.
On May 4, 2020, the British Columbia government amended the Employment Standards Act Regulation to allow for 16 weeks of temporary layoff during a 20 week period before employment is deemed to be terminated under the Employment Standards Act. Prior to this amendment, the ESA deemed employment to be terminated after 13 weeks of layoff during any 20 week period.
The government announced that the amendment is intended to align with the Canada Emergency Response Benefit (“CERB”) and eliminate the possibility that employees will be deemed to be terminated when otherwise eligible for CERB.
On June 25, 2020, the government announced that the temporary layoff provisions under the Employment Standards Act (“ESA“) will be extended to 24 weeks, expiring on August 30, 2020.
The extension will give employers and workers additional flexibility to support economic recovery in the province with the expectation that businesses honour their obligations to workers and reach agreement with their employees in the event a further extension is required. Section 72 of the BC’s Employment Standards Act provides a tool allowing employers and workers to extend temporary layoffs by making a joint application to the Employment Standards Branch.
The government has indicated that they will ensure the Section 72 applications are processed in a timely and effective manner to support economic recovery and protect workers’ rights.
For information on employment standards around temporary layoffs, visit: www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/termination#laying-off
5. New Brunswick waiver of notice for unforeseen reasons
According to the New Brunswick government, COVID-19 falls within the exemption of the requirement of notice under unforeseen reasons.
As such, employers are not required to provide notice to their employees or pay in lieu thereof, nor are they required to provide notice to the Minister of Post-Secondary Education, Training and Labour for group terminations or layoffs within a four week period. This mass layoff notice is required when terminating more than 10 employees if they represent at least 25 percent of the employer’s employees.
6. Federally regulated workplaces under the Canada Labour Code [updated June 23]
The federal government announced changes to the Canada Labour Standards Regulations which temporarily extend the permitted temporary layoff period for federally regulated employees laid off due to the pandemic. According to a government press release, the amendments temporarily extend these time periods by up to 6 months as follows:
- for employees laid off prior to March 31, 2020, the permissible time period is extended by 6 months or to December 30, 2020, whichever occurs first; and
- 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 was provided in a written notice at the time of the layoff.
These changes, which came into effect on June 22, 2020, do not apply to employees who are covered by a collective agreement that contains recall rights.
These changes also do not apply to employees whose employment had already been terminated prior to the coming into force of the amendments.
More information is available here.
On May 20, 2020, the government announced proposed legislative changes to suspend certain time limits, including those regarding temporary lay-offs under the Canada Labour Code (section 30 of the Canada Labour Standards Regulations). The draft legislative proposals will be online for 10 days. Employers are invited to share their comments with the government.
7. Ontario temporary layoff measures [May 29]
The government published a regulation which, among other things, deems temporary reductions or cessations in hours due to COVID-19, or any temporary layoffs due to COVID-19, which began on or after March 1, 2020 not to trigger constructive dismissal claims or the deemed termination and severance provisions under the Employment Standards Act, 2000. The regulation deems employees who are not performing work (e.g., those on a temporary layoff under the ESA) on or after March 1, 2020 to have been on an Emergency Leave under the ESA.
The regulations provide that employees that were on layoff under the ESA have been, instead, on this Emergency Leave. Though leaves of absence under the ESA generally require employers to continue employee participation in applicable pension plans, life insurance plans, accidental death plans, extended health plans and dental plans, the regulation does not require such participation or employer contributions if an employee who is not performing work (e.g., who is on a temporary layoff) is not participating in these plans/the employer was not making contributions as of May 29, 2020.
8. Newfoundland and Labrador temporary layoff COVID-19 changes
On June 12, 2020, the Newfoundland and Labrador government announced the following temporary amendments to the Labour Standards Act:
- the period that an employee can remain temporarily laid off is extended to 26 weeks in a period of 33 consecutive weeks (increased from 13 weeks in a period of 20 consecutive weeks); and
- the time period for making a complaint to the Director of Labour Standards is extended to 12 months (increased from 6 months).
Both extensions are retroactive to March 18, 2020 and will end on September 18, 2020.