After more than two years, Ontario’s temporary layoff measure implemented when the COVID-19 pandemic struck, has finally ended.
On March 19, 2020, the Ontario government created a new leave under the Employment Standards Act, 2000 (“ESA”), called the Infections Disease Emergency Leave (“IDEL”). Under the ESA, layoffs have always been permissible for a period of up to 35 weeks if certain criteria are met, but IDEL operated to extend that length of time indefinitely. Once a layoff expires, the employer must either recall the employee to work or terminate the employee’s employment and pay severance.
IDEL expired on July 30, 2022, but many employees were neither recalled to work, nor provided with severance. The question lingering in the back of many employees’ minds are, why not?
The reason is that now that IDEL has ended, the employee has been placed on a 35- week layoff under the ESA.
The IDEL provisions under the ESA purported to shield employers from constructive dismissal claims but it is important to keep in mind that the measure only did so under the ESA and not under the common law. Layoffs have never been legal under the common law unless they were agreed to under the terms of the employment contract.
Now that IDEL has expired, an employee who is placed on a 35-week layoff may have a strong claim against their employer for constructive dismissal and seek a severance package, but it is important to act quickly. If an employee does not object to the layoff quickly, an employer may be able to argue that the employee consented or acquiesced to the layoff so, the clock is ticking.
Employees who are placed on a 35-week layoff should immediately contact Lecker & Associates to speak with a lawyer and determine if you have a claim for constructive dismissal and learn about how much severance you may be entitled to receive.