Recalling Employees To Work: Guidance for Ontario Employers

What employers need to be aware of when recalling employees, who were temporarily laid off

Covid-19 has brought unprecedented changes to many companies. One of the biggest challenges for employers was temporarily laying off staff.

What employers need to be aware of.

Temporary Layoff vs. Regular Termination

A temporary layoff occurs when an employer suspends an employee’s work duties and pay for a limited time, but does not end the employment relationship. The expectation is that the employee will be recalled to work.
 

A regular termination in Ontario ends the employment relationship in one of the following ways:
 

1. Termination without cause, which means the employee is dismissed at any time and for any legal reason and, therefore, the employee is generally entitled to reasonable notice or termination pay in lieu of notice.
2. Termination for cause, which means an employee is fired for serious and willful workplace misconduct or wrongdoing and is not entitled to notice of termination, termination pay, or severance pay.

How Long Can a Layoff Last?

Under the Employment Standards Act (ESA) 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, only if:
• the employee continues to receive substantial payments from the employer; or
• the employer continues to make payments for the benefit of the employee under a legitimate group or employee insurance plan (such as a medical or drug insurance plan) or a legitimate retirement or pension plan; or
• the employee receives supplementary unemployment benefits; or
• the employee would be entitled to receive supplementary unemployment benefits but isn't receiving them because they are employed elsewhere; or
• the employer recalls the employee to work within the time frame approved by the Director of Employment Standards; or
• the employer recalls the employee within the time frame set out in an agreement with an employee, who is not represented by a trade union

Lay-off Clause in an Employment Contract

A standard lay-off clause should state the employer’s right to temporarily lay off the employee as needed.

The employer might also want to clarify whether the layoff would be without pay or if the employee would continue to receive wages or certain benefits.

What Temporary Layoff Ends Employment

If an employee was put on a temporary layoff and accepted, once the layoff lasts more than 23 weeks then the employment will automatically come to an end. At that point, generally, the employee will be entitled to termination pay.

Recalling Temporarily Laid Off Employees

During a temporary layoff, an employer upon notice to their employee, can set a recall date requiring the employee to return. Below are a few ways to recall employees:
 

• 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
• Use objective criteria when recalling staff (seniority, order of layoff, etc.)
• A recall notice should give employees sufficient notice to make arrangements to return to work

Patrick Stepanian is Legal Manager at HR consulting firm Peninsula Canada Visit peninsulacanada.com Connect Patrick Stepanian