Bringing back workers from COVID-19 or IDEL layoffs

Interview Summary

As the Ontario provincial government allowed the Infectious Disease Emergency Leave layoffs to expire, many who had been put on a layoff by their employer expected to return to work. What could employees do if they were not recalled? Will their employers face any legal consequences for failing to bring workers back?

Lluc Cerda, an employment lawyer and Senior Associate at Samfiru Tumarkin LLP spoke with Kelly Cutrara on 640 Toronto to answer these questions and more.

Interview Notes

• Normal Employment Standards layoffs and IDEL layoffs: Prior to the pandemic, employees who were placed on a layoff would have to be called back to work after a maximum of 13 weeks. A failure to be recalled would result in termination. Under IDEL however, employers could place employees on a leave of absence for over 2 years.
• Legal options available to employers when IDEL expired: Employers could recall employees, terminate employees or place employees on a regular layoff as IDEL was considered to be a leave of absence. While it is not legal, employers could also choose not to contact employees placed on an IDEL leave.
• IDEL considered job-protected leave: While employers could offer employees severance pay, employees could choose to be recalled back to work and force their employers to do so. Employees can also require employers to offer back-pay for time away.
• Employers are forced to recall employees even if a job no longer exists: It is important to note that if an employee’s job no longer exists, employers must try and find a comparable position for the employee at the workplace. If there are no comparable positions available, then an employer must offer adequate severance pay.
• Strong likelihood of wrongful dismissal lawsuits: While it is the hope that employers will offer adequate severance pay, many are unaware of their obligations or do not offer what employers are actually owed. Before an employer decides to settle, which happens frequently, a wrongful dismissal lawsuit does need to be filed.