Things have been moving incredibly quickly in the past few weeks, with many businesses shutting their doors with little or no warning to customers and employees alike. In the face of the changing economic landscape, staffing needs are changing, and many employees are receiving notice that they are being “temporarily laid off.” But what exactly is a “temporary layoff” in Alberta and what impact does it have on an employee’s rights?
What is a Temporary Layoff in Alberta?
In Alberta, temporary layoffs for non-unionized employees are governed by the Employment Standards Code (“the Code”), which lays out the requirements that employers must follow if they wish to engage in temporary layoffs.
The Code includes provisions that allow an employer to lay off an employee for a specific amount of time, while still maintaining an employment relationship with that employee. Although employees are generally not entitled to pay during the layoff period, their employment has not been officially terminated, it has only been “paused.” Under temporary layoff provisions, employers can generally recall the employee and request that they return to work at any time before the end of the temporary layoff period.
In certain circumstances, an Employment Agreement may also include language regarding temporary-layoffs. If the terms set out in the Agreement offer a “greater right, or benefit” than what is offered under the applicable employment legislation, the procedure regarding temporary layoffs will likely be governed by that Agreement instead of by legislation.
How Can a Lawyer Help Me?
Language around temporary lay-offs can be confusing. Having a lawyer review your contract or lay-off letter can give you a better idea of your rights and what to expect going forward. Furthermore, if you are are not hired back within the 120 days, your employment is deemed terminated. A terminated employee may be entitled to severance (under employment standards legislation, common law, or contract), however, sometimes it is difficult to tell whether you are being treated fairly. Our lawyers can help by reviewing your severance package and providing advice on your entitlements and rights under the law.
Does my Employer Need to Provide Notice of Temporary Layoffs?
Under normal circumstances, and as set out by the Code, an employer must provide an employee with proper notice of temporary layoff. However, the Code does allow for notice of temporary layoff to be “as soon as practicable” if unforeseeable circumstances prevent an employer from adhering with the Code’s notice provisions. The outbreak of COVID-19 would likely qualify as “unforeseen circumstances.”
Any notice must be in writing and clearly state that it is a temporary layoff notice, including the date the layoff is to commence. The employer should also include the relevant sections of the Code alongside the notice.
How Long Can My Employer Lay Me Off For?
In Alberta, temporary layoffs used to be limited to 60 days within a 120 day period. However, on April 6, 2020, Premier Kenney announced a temporary change to the Alberta Employment Standards Code which increases the temporary lay-off period from 60 days to 120 days. This increase applies to any temporary layoff that occurred on or after March 17, 2020.
Under the previous legislation, there were a number of circumstances where this time limit could be extended even further by the employer, but only by agreement of the employee. This will likely remain the case under the new amendments but has not yet been confirmed. There has yet to be clarification on whether these temporary amendments will limit the total maximum days of layoff allowed within a prescribed period of time, as was the case previously.
If your employer asks you to extend your leave past the 120-day mark, we recommend seeking legal advice from one of our experienced employment lawyers regarding your options.
Will I Still Receive Compensation During a Temporary Layoff?
An employer is not obligated to continue paying an employee during the period of a temporary layoff. However, employees who have been laid of temporarily may be able to qualify for EI Benefits if they have enough insurable hours. Alternatively, an employee is able to qualify under one of the other financial assistance programs announced by the Federal and Provincial Government in response to COVID-19.
What Does it Mean to Be “Recalled”?
The Code allows an employer to recall an employee back to work by providing the employee with written notice before the expiry of the 120-day period. An employee must return to work within 7 days of the date of the recall notice. If the employee does not return to work within this period and their employment is terminated as a result, their entitlement to termination notice or ‘pay in lieu of’ notice could be adversely affected.
Is my Employer Required to Give Me my Job Back after 120 Days?
No. If the employer has not issued a notice of recall, and there has been no mutual agreement to extend the layoff period past 120 days, the employment relationship is deemed to have been terminated.