As the COVID-19 pandemic continues to affect the job market, causing many to be laid off from their jobs or have their hours substantially reduced at work, many people are left wondering whether they have any rights in this situation. Generally speaking, there are two sources providing rights to non-unionized employees when they are laid off from work, one being the Employment Standards Act (ESA), and the other being the common law. The latter refers to unwritten laws based on legal precedents, meaning the decisions of courts, which affect how a court may decide a similar issue in the future. However, given the unprecedented nature of the COVID-19 pandemic, these rights are expected to be affected, which has in fact already occurred with regards to those under the ESA.
The Ontario Government enacted changes to the ESA that directly affect the treatment of layoffs. These changes are effective for a period of time defined as the “COVID-19 period”, being Mach 1, 2020 to January 2, 2021. Prior to these revisions, under the ESA, employees were entitled to termination pay, and severance pay, if eligible, after a temporary layoff that extended for at least 13 weeks in a 20 week period, and in some circumstances, 35 weeks in a 52 week period. However, under the new rules, an employee who has been temporarily laid off, is deemed to be on a job-protected Infectious Disease Emergency Leave. This means that, under the ESA, during the “COVID-19 period”, employers no longer have to provide termination pay or severance to employees who are laid off for periods longer than 13 weeks, or 35 weeks where required, if the layoff falls within the “COVID-19 period”. The Ontario Government has further stated that the layoff clock will re-set on January 3, 2021, meaning that the 13 week and 35 week periods, whichever it may be, will only start counting on this day for any employee laid off during the COVID-19 period. Of course, for the new rules to apply, the reason for the layoff must be related to the Coronavirus pandemic.
Even though the new ESA rules may prevent employees form seeking termination and severance pay, there are still possible remedies under the common law. The common law concepts of wrongful dismissal and constructive dismissal are separate, and unaffected, by the ESA rules. This means that employees laid off during the COVID pandemic can still apply to the courts when seeking termination pay in lieu of notice of termination. Unlike the ESA, this process does not involve a complaint with the Ministry of Labour, but rather a claim with the Superior Court of Justice. It is possible that the court will change its approach to claims for termination pay arising from dismissals or layoffs during COVID-19, in order to balance the competing interests of terminated employees and employers who suffered significant monetary losses during the pandemic. This will only become clearer once more termination cases, arising from COVID-19, make their way through the courts.
However, under the current common law regime, employees terminated without cause have a right to reasonable notice, or pay in lieu thereof. If you have been laid off or terminated during COVID-19, a lawyer with employment law expertise can help you assess your entitlement to termination pay. Contact Us.