Leave of Absence What employees need to know | Employment Law Show TV- S5 E11

Episode Summary

LEAVE OF ABSENCE: WHAT EMPLOYEES NEED TO KNOW, an employer asking for resignation, a contractor owed severance and more on Season 5 Episode 11 of the Employment Law Show with employment lawyer Lior Samfiru, Partner at Samfiru Tumarkin LLP.

Watch above to discover your workplace rights and learn everything you need to know about employment law in Ontario, British Columbia,  and Alberta, on the only employment law show on both TV and radio in Canada.

Episode Notes

Severance after six years

I lost my job after 6 years and was offered severance for 15 weeks. I signed the agreement but haven’t sent it in yet. I heard your show. Is this calculation accurate?

Lior explains that many people are not aware they are owed more severance than their former employer offers. It is important before signing a severance offer to speak with an employment lawyer.

Segment starts at 1:55

CALL: Employer asking for a resignation

My wife was laid off temporarily in March due to COVID-19. We were supposed to receive her ROE, but that never happened. HR just recently called her, asking her if she wants to resign from her position. Would she be owed severance in that case?

Employees can choose to treat a temporary layoff as a termination and seek severance. An employee in this situation is owed severance entitlements.

Segment starts at 6:12

Contractor owed severance

I just lost my job of 4 years with a software company. I signed the same 12-month contract with them every year. I know that I’m not owed severance because I’m a contractor and not an employee, but my husband doesn’t agree.

Many people are misclassified as an independent contractor as they are technically an employee. If an employee has a regular set of hours, a sole employer, etc. they are a considered an employee and are owed severance.

Segment starts at 8:55

Leave of Absence: What employees need to know

1️⃣ What is a Leave of Absence?

A leave of absence refers to time away from work that is approved by the employer. There are many different types of leaves of absence, but an employee is still considered employed.

Segment begins at 13:21

2️⃣ Can an employer refuse a request for a leave?

Some leaves are not up to an employer such as a medical leave. Leaves of absence such as an employee is not comfortable going into work due to COVID-19, the employer does not by law have to provide a leave of absence.

Segment begins at 14:10

3️⃣ Does an employer have to pay the employee during a Leave of Absence?

Generally, an employer does not have to pay an employee during a leave of absence but an employee does have other benefits such as disability benefits that can help financially.

Segment begins at 15:26

4️⃣ Does a leave impact the employee’s length of service with the company?

Seniority continues during a leave of absence regardless of the type of leave.

Segment begins at 16:17

5️⃣ Can someone be fired or laid off during a leave?

The type of leave will dictate whether or not they are let go. If an employee is on leave due to a medical condition or has to care for a family member, they are legally protected and cannot be terminated while on leave.

Segment begins at 18:12

6️⃣ Can an employer make changes to an employee’s job when they return to work?

An employer cannot make significant changes to an employee’s job and if they do, an employee can treat these changes as constructive dismissal.

Segment begins at 19:20

7️⃣ If an employee wants to return from leave to modified duties, can the employer refuse?

An employer has an obligation to provide accommodations to an employee due to a medical condition such as modified duties or hours, etc.

Segment begins at 20:12

CALL: Asked to sign a new employment agreement with a pay cut

Before I return from a COVID-19 layoff, I’ve been asked to sign a letter that says I may be asked to take a pay cut or reduced hours of work. Do I need to sign it? My employer says it’s not a legal document.

Lior explains that an employer in this situation is seeking consent to make significant changes to an employee’s terms of employment such as a significant pay cut. New agreements should not be signed without speaking to an employment lawyer as it is usually not in the employee’s best interests.

Segment starts at 21:25

CALL: Laid off after 17 years with notice

I was laid off after 17 years of work and was given 8 weeks of working notice and 17 weeks of pay. Are there taxes on severance, and was I owed more?

Severance payments are taxed as they are considered income. Severance entitlements take into account the length of employment as well as age and position. Unfortunately, acceptance of severance terms is final.

Segment starts at 25:00

Fired for cause after a performance review

In my latest performance review, my boss said I was underperforming as a senior manager, a role I have held for 3 years. If things do not improve over the next month, I will be fired for cause. What should I do?

It is extremely difficult to be terminated for cause. Communicating with your employer after incidents or criticism is important.

Segment starts at 27:52

NEXT EPISODE: Employment Law Show S5 E12 – Employment Law: True or False

PREVIOUS EPISODE: Employment Law Show S5 E10 – Rights of older employees during COVID-19