To give federally regulated employers more time to recall employees due to the COVID-19 pandemic, certain layoff periods under the Canada Labour Standards Regulations have (again) been temporarily extended as of November 9, 2020, as follows:
Employee laid off before March 31, 2020
- Three-month layoff: If an employee is laid off for a period of three months or less before March 31, 2020, the period is extended by nine months after the date on which it would otherwise end. As a result, the employer has 12 months to recall the employee before the layoff is deemed a termination of employment.
- Layoff with a recall date or for a fixed period: If the employee is laid off with an expected recall date or for a fixed period before March 31, 2020, the date specified in the written notice is extended by nine months or until March 31, 2021, whichever comes first.
Employee laid off between March 31 and December 31, 2020, inclusively
- Three-month layoff: If an employee is laid off for a period of three months or less between March 31, 2020, and December 31, 2020, the period is extended and the employer has until March 31, 2021 to recall the employee before the layoff is deemed a termination of employment.
- Layoff with a recall date of for a fixed period: If an employee is laid off with a recall date or for a fixed period between March 31, 2020, and December 31, 2020, the layoff period is extended and the employer has until March 31, 2021 to recall the employee before the layoff is deemed a termination of employment, unless a later recall date or fixed period has been provided in a written notice.
In all cases, it should be noted that employers retain the right to recall their employees to work any time prior to dismissal.
Under the Canada Labour Code, if an employee is eventually terminated by the employer, the employer is still required to pay the employee eligible termination pay, severance pay and/or vacation pay in accordance with the applicable provisions of the Code. It should be noted that the laid off period will continue to count towards his or her continuity of employment and will thus be factored into the calculations for termination pay and severance pay.
The temporary extension of layoff periods does not apply to employees who:
- are covered by a collective agreement containing recall rights or a minimum guarantee of work;
- are on strike or lock-out;
- receive payments from the employer (for example, payment made for purposes of staff retention);
- receive employer contributions to a pension or insurance plan;
- receive or are eligible to receive supplemental unemployment benefits;
- stop working before the effective date of these changes;
- were terminated before June 22, 2020;
- were terminated before November 9, 2020, because their employer chose not to apply the extension of June 22, 2020.
Remember that these changes are temporary and do not apply to layoffs after December 31, 2020.
New notice "as soon as possible"
The federal Labour Program recommends that employers intending to extend the temporary layoff period inform their employees of this "as soon as possible." To do so, the employer must provide the employee with a new written notice indicating the new recall date, in accordance with the applicable requirements provided in the Canada Labour Code.
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