'Temporary' Infectious Disease Layoffs during COVID-19

TORONTO -

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With COVID-19 cases on the rise, employees across the country are wondering if their jobs could, once again, be at risk. Given how uncertain the situation is right now, employers may opt to “Infectious Disease Emergency Lay-off” ("IDEL”) employees and recall them once restrictions loosen in the future.

Prior to the pandemic, a temporary layoff was lawful only if it was expressly accounted for in the employee’s contract. Ontario’s Employment Standards Act has since changed, however, to allow for an IDEL.

“The consequence is that some employees have been laid off since March 2020, without a secure recall date and without pay,” says Kimberly Sebag, an associate with Toronto-based law firm Lecker and Associates. “But while employers are allowed to suspend employees under the infectious disease leave, this is not permitted under common law.”

If you do find yourself temporarily laid off, it’s important to determine whether it was a “legitimate layoff,” says Bram A. Lecker, an employment lawyer and founder of Lecker and Associates. Many employers are using the pandemic as an opportunity to trim staff, which is not in the spirit of the revised laws, he says. Call a lawyer if something feels off.

It’s also important to pay attention to what happens after the temporary layoff. If you’re not given a return date, if someone else takes your position, if your benefits have been discontinued or if your calls are going unanswered, then it could be time to seek legal counsel.

“That could be two months or six months, but at that time your common law rights are being violated,” says Lecker. “After a 13-week period (unless the layoff is for COVID-19-related reasons) the employer is in breach and you should start looking into whether you should be seeking compensation.”

Depending on the length of the layoff, you may want to start looking for another job. Keep in mind though, if you do find work elsewhere, your employer is only entitled to pay you the minimum severance laid out in the Employment Standards Act, which is just a few weeks of pay instead of potentially months.

Those who may be facing temporary layoffs today should speak to a lawyer to ensure that what’s happening is legal. If you’ve been off work since the pandemic began, consider calling your employer and asking directly when you’re coming back to work. At this point, if there’s no return date, then there could be a problem.

“At that point in time,” says Lecker, “it could really be a termination.”

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