Temporary Layoffs in Ontario

This resource will provide you with answers to all your questions about temporary layoffs. Samfiru Tumarkin LLP has helped thousands of non-unionized Canadians navigate their temporary layoff and get the compensation they are owed. If you’ve been temporarily laid off, contact our team today.

Watch the video below and read on to learn more about your rights when your work is brought to a halt.

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What is a temporary layoff in Ontario?

A temporary layoff in Ontario occurs when an employer suspends an employee’s work duties and pay but does not end the employment relationship. The expectation is that the employer will one day recall the employee back to work.

A temporary layoff allows an employer to suspend an employee’s duties and pay for a limited time, without having to pay the usual entitlements, such as severance pay, when the employment relationship is terminated. Employers often use temporary layoffs for reasons such as restructuring, seasonal changes to the nature of the work, or economic downturn.

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How is a temporary layoff different from a regular termination?

A regular termination in Ontario ends the employment relationship with your employer in one of two ways:

• A termination without cause (you are let go for a reason that is not severe misconduct, and you would be entitled to Ontario severance pay)

• A termination for cause (you are fired for significant workplace misconduct, and are not entitled to a severance package)

With a temporary layoff, your work and the employment relationship is suspended, leaving you without a severance package.

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Is an employer allowed to lay off an employee temporarily in Ontario?

Under the Ontario Employment Standards Act (ESA) an employer in Ontario does not have the automatic right to temporarily lay off an employee. If you are put on a temporary layoff, you have two options:

• accept the layoff and wait until you are either called back to work or permanently let go from your job
• refuse to accept the layoff, treat it as a termination of employment, and get severance pay

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Are there any situations where a temporary layoff is allowed?

You can be put on a temporary layoff in Ontario if:

• You accept the temporary layoff;
• You signed an employment contract in Ontario that contains written consent to a temporary layoff;
• You previously accepted a temporary layoff with the same company, likely giving your employer the ability to do so again; or,
• You work in an industry where temporary layoffs are a common industry-wide practice (examples would be the construction and logging sectors).

Before you assume that these rules exempt you from obtaining severance pay through a constructive dismissal, contact us first to find out what your full rights are.

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Can my employer lay me off temporarily because of COVID-19?

Due to the COVID-19 pandemic, the Ontario government has implemented new rules regarding layoffs. Beginning in March 2020, the government created the Infectious Disease Emergency Leave (IDEL), or Regulation 492/20. It allows employers who put them on a layoff to keep them on it until Jul 30, 2022. Once IDEL expires on July 30, 2022, an employer can place an employee on a temporary layoff for up to 35 weeks, moving their return date to as late as April 2023.

This does not change the fact that employers cannot put employees on a layoff unless they have the employee’s express permission, the employee agrees to it, or it is stated as permissible in the employment contract. IDEL does not impact an employee’s ability under common law to treat a temporary layoff as a termination and receive their full severance pay.

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What should I do if I’ve been temporarily laid off?

If you are temporarily laid off in Ontario, you can accept it and wait patiently to be recalled – which may never happen. You also have the option to treat it as a termination (through a constructive dismissal) and seek your severance entitlements, which could be up to 24 months’ pay.

Before you accept a temporary layoff, contact a member of the team at Samfiru Tumarkin LLP, to find out more about your rights under a temporary layoff and to discuss your options.

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How long can a layoff in Ontario last?

Since an employer in Ontario does not have the legal right in the first place to impose a temporary layoff (see factors that may permit a layoff to occur) there is no maximum length of time that it is allowed. Any length of time that you are on a temporary layoff is unacceptable and is viewed as a significant change to the terms of your employment. An employee can claim that they have been constructively dismissed and pursue a severance package with help from a lawyer.

Under Ontario’s provincial legislation, temporary layoffs can last up to 13 weeks in a consecutive 20-week period. It can include either time not worked by the employee or time where the employee is earning significantly less income (i.e., 50% or less) as compared to their regular earnings pre-layoff.

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What happens when a temporary layoff ends?

If you were put on a temporary layoff and accepted it, once the layoff lasts more than 23 weeks your employment will automatically come to an end. At that point, you will be entitled to a severance package, which in some cases could be as much as 24 months’ pay.

If this has happened to you, reach out to a member of our team at Samfiru Tumarkin LLP to secure your full severance entitlements.

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How much severance am I entitled to in Ontario?

If you decide to treat your temporary layoff as a termination through an employment lawyer at Samfiru Tumarkin LLP, you would be owed full severance. We calculate severance pay in Ontario by reviewing a number of factors, including an employee’s age, position, and length of employment.

A complete severance package includes your provincial minimums guaranteed under the ESA in Ontario, and common law entitlements. Generally speaking, severance can be as much as 24 months’ pay.

Use our free and anonymous Severance Pay Calculator to determine how much you could be owed in this situation.

Before you sign off on any severance offer your employer makes, you should consult with an employment lawyer at Samfiru Tumarkin LLP. We review thousands of severance offers every year, and 90% of those offers are dramatically less than what they should be. When an employee is offered less than the correct amount of severance, they have been wrongfully dismissed. If you contact us before you sign off on a package, an employment lawyer can still help you get all the compensation you’re rightfully owed.

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Does an employer need to provide notice for a temporary layoff?

In Ontario, employers do not have to provide a specific amount of notice, or warning, that they are putting an employee on a temporary layoff.

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Does my employer have to give advance notice that I am being called back to work?

Employers are not required to provide any advance notice to an employee who is going to be called back to work.

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Can my employer make changes to my job when they call me back to work?

It is important to note that when an employee is recalled to their job in Ontario, the conditions of employment must remain the same. An employer cannot make any significant changes to an employee’s duties, shifts, schedules, pay, or time off. The terms of employment must remain as they were in your original employment contract, or as they were immediately before the layoff.

If you were recalled from a temporary layoff and your employer is attempting to alter your job in any way, speak to an employment lawyer immediately. You may be able to make a claim for constructive dismissal and leave your job with full severance pay.

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Can I be put on a temporary layoff a second time?

If you decide to accept a temporary layoff, and you are eventually recalled back to work, the drawback is that your employer may be able to lay you off again a second or third time. In the eyes of the law, once you’ve accepted it once, you’ve given your employer the right to do it again.

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Can my employer put me on another temporary layoff?

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