Back to Work: Recalling Employees from Temporary Layoffsachkarlaw-admin
When it is safe to do so, many businesses will have the opportunity to reopen to the public, meaning employees who were laid off will be returning to work. With some businesses reopening as early as this week, it is important for employers to know how to properly recall employees back to work, and to avoid potential legal disputes down the line.
Potential Risks to be Aware of Regarding Temporary Layoffs
Keeping an employee laid off for too long runs the risk of having the employment relationship deemed as ended, which can entitle the employee to damages for constructive dismissal. It is essential for an employer to know the applicable time limits for temporary layoffs.
In Ontario, temporary layoffs are normally allowed for up to 13 weeks in a consecutive 20 week period or up to 35 weeks, in a consecutive 52 week period in certain circumstances as outlined by the Employment Standards Act, 2000.
For federal employees, temporary layoffs are generally allowed for periods of three months or less. A temporary layoff may exceed this time limit in certain circumstances as provided by the Canada Labour Code.
An additional factor for employers to consider is whether an employment agreement or collective agreement allows for temporary layoffs. Ontario case law has determined that if the employment agreement does not allow it, a temporary layoff may be improper and entitle the employee to damages.
How to Recall an Employee Back to Work
Federal and provincial businesses have different procedures for recalling employees to work. It is important for an employer to know the differences and follow the correct procedure depending on the type of employees they employ.
In Ontario, a provincial employer can recall an employee to work by requesting that they return within a reasonable amount of time from receiving the request. However, if a recall procedure is set out in a workplace policy, employment agreement, or collective agreement, the employer must follow the procedure that provides the employee the greatest benefit.
For federal employers however, an employee recall procedure set out in a workplace policy, employment agreement, or collective agreement must be followed. The employer must ask the employee to return to work within a reasonable amount of time from the recall notice only if there is no other procedure already in place.
Employees that do not return to work after receiving a recall notice from an employer may be deemed to have ended the employment relationship.
Recalling Specific Employees First
For some employers, it may be necessary to re-open his or her business slowly. An employer may wish to recall certain employees first if they have essential duties or specific duties an employer requires more urgently than others.
An employer does not have to recall every employee that has been temporarily laid off at the same time. The recall of employees can be staggered so long as the workplace policies, employment agreements, or collective agreements do not prevent this. An employer must, however, ensure that all temporarily laid off employees are recalled within the statutory time limits to avoid potential liability for damages.
If you are an employer who is planning to recall employees to work, or an employee who has been laid off and want to know your rights and options, our team of experienced legal professional at Achkar Law can help. Contact us by phone toll-free at 1-(800)771-7882 or email us at [email protected] and we would be happy to assist.
If you are a small or medium size company looking for full-service support, visit our CLO program page for our strategic solutions.
Disclaimer: This blog is not intended to serve as, or should be construed as legal advice, and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call 1-(800)771-7882, or email [email protected].