Temporary Layoffs – Guide For Employers & Employees

You were laid off? Oh no! That’s awful. I’m so sorry. You know what, they never appreciated you the way you deserve. What a lousy bunch of – temporarily? Ohhhh. Huh. So, you’re not fired? Ok. Refresh my memory on this whole temporary layoff thing!

What Is A Temporary Layoff?

Chances are, you’ve heard of temporary layoffs. Maybe you’ve wondered if this could happen to you and, if it did, what exactly that would mean.

A temporary layoff is the cutting back or complete cessation of an employee’s employment with the understanding that they will be called back to their full-time position within a specified period of time. A temporarily laid off individual is still considered an employee, even if they are not working. This can mean that they are not working at all, or even simply earning less than half of their regular wages.

What Is A Temporary Layoff - Employment Lawyer - KCY at LAW

Temporary Layoffs – A Solution for Hard Times

A temporary layoff is a way mitigate economic hardship for both employer and employees. Temporary layoffs are often brought on by things like economic downturn, shortages of work and seasonal employment.

Temporary layoffs are most common in union environments where collective bargaining agreements determine the parameters of a layoff such as which employees are the first to return to work.

A temporary layoff allows employers to avoid severance or termination costs as long as the employee is recalled to work within 13 weeks of the layoff’s commencement. Though it would certainly be appreciated by their employees, employers have no obligation to provide notice of a layoff. Additionally, employers are not required to give termination notice until the last day of the layoff should it become clear that the layoff will have to become permanent.

Contractual Agreements and Temporary Layoffs

The parameters of temporary layoffs are set out in the Employment Standards Act (ESA). However, the ESA doesn’t give employers the right to enact them. The right to temporarily layoff an employee must be contractually stated, either in the employment contract or the collective bargaining agreement.

If an employee is temporarily laid off without a provision for this in their contract, the layoff would be considered a constructive dismissal and the employee would be entitled to seek damages for wrongful dismissal.

Wrongful dismissal charges may be avoided if the laid off employee is immediately recalled to their former position. Furthermore, some courts have found that employees who refuse to return to their position after a non-contractual layoff will be found to have failed in their duty to mitigate their damages.

If the power to perform temporary layoffs was not in written agreement at the time of hire and an employer wishes to pursue this option, they should approach their employee with a written proposal for a temporary layoff. It is possible that the employee will choose this over termination, especially since employees can usually collect Employment Insurance benefits during a layoff.

How Long Can Temporary Layoffs Last?

How Long Can Temporary Layoffs Last - Temporary Layoffs Guide - KCY at LAWA temporary layoff can last up to 13 weeks in a consecutive 20-week period. However, if a layoff exceeds this 13-week period it will become a termination at which point the employee will be entitled to termination pay in lieu of notice with the first day of the layoff becoming the date of termination.

However, the ESA provides that a temporary layoff may be extended to as long as 35 weeks if:

  • The employee continues to receive substantial payments from the employer,
  • the employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan or a legitimate group or employee insurance plan,
  • the employee receives supplementary unemployment benefits,
  • the employee is employed elsewhere during the lay-off and would be entitled to receive supplementary unemployment benefits if that were not so,
  • the employer recalls the employee within the time approved by the Director, or
  • in the case of an employee who is not represented by a trade union, the employer recalls the employee within the time set out in an agreement between the employer and the employee; or

If an employee quits before a layoff is over they are not owed severance or termination packages but may still be entitled to accrued benefits such as vacation pay.

Temporary Layoff Legal Experts

Employers should always seek legal counsel before temporarily laying off an employee. To speak with an experienced employment lawyer about temporary layoffs or any other employment law matter, call KCY at LAW at (905) 639-0999 or contact us online here.

Tattoos and Piercings In The Workplace

Whereas tattoos, Crayola-coloured hair and prolific facial piercings were once an aesthetic reserved for punks, goths and other subculture groups, these body modifications have become commonplace in mainstream Canadian culture. For example, an estimated 38 per cent of millennials have tattoos and the trend towards an inked-up epidermis isn’t showing signs of slowing.

Despite their growing popularity and visibility, many workplaces still prefer that their employees do not have visible tattoos or piercings beyond their ears. But as an increasingly tattooed and pierced generation comes to dominate the workforce, so too do their sensibilities about acceptable presentation and self-expression.

Which raises the question: do employers have the right to discriminate on the basis of body modifications such as tattoos and piercings when hiring employees?

Appearances and Hiring in Canada

Given Canadian culture’s ever-growing tendency towards the celebration of differences, it may surprise you to learn that, when it comes to hiring, employers have every right not to hire someone because they are tattooed or heavily pierced. So long as the tattoos or piercings are not part of an ethnic, religious or tribal custom, the Human Rights Act and the Charter of Rights and Freedoms do not apply to employers’ hiring choices with regards to body modifications.

Tattoos and Piercings In The Workplace in Canada- KCY at LAW

Tattoos and Piercings in the Workplace

Once an employee is hired, employers do not have the same discretion to impose strict rules regarding visible tattoos and piercings.

Employers do have the right to exercise their own discretion when asking their employees to remove piercings or cover up tattoos. However, significantly restrictive rules concerning piercings and tattoos should have a reasonable business purpose. Therefore, employers should ask themselves if their rules relate to the achievement of their company’s purpose.

Recent decisions from Ontario and Quebec judges have begun to clarify the limits of employers’ discretion when setting workplace policies concerning tattoos and piercings.

In 2013, the Ottawa Hospital changed its dress code to require all staff (including those who did not work directly with patients) to cover all “large” tattoos. The new policy also required that staff remove “excessive body piercings.” The Ottawa Hospital argued that patients were less comfortable with tattooed and heavily pierced healthcare workers and that this could lead to stress and negative health outcomes. While the hospital argued that these measures were to ensure better patient health, the arbitrator found that these new regulations were too restrictive. Moreover, the arbitrator could find no evidence to support the supposed link between hospital workers’ body modifications and patients’ health outcomes and was therefore found to be unenforceable.

The Ottawa Hospital decision was consistent with a 2011 arbitrator decision that found an Ontario Provincial Police policy requiring all 9,000 of its police officers to cover visible tattoos was too broad to be enforceable.

Going further back, in 2009, a Quebec judge determined a daycare’s blanket prohibition on visible tattoos to be unreasonable. The judge granted that, while it was fair for the daycare to prohibit visible tattoos with inappropriate images for children, their insistence that an employee with a butterfly on her arm wear long-sleeves in the summer was overreaching.

Tattoo and Piercing Workplace Policies

Employers should consider if having visibly tattooed and/or pierced employees is likely to negatively impact their business interests.

Naturally, an employer does not want their employees’ appearance to be upsetting or off-putting to their clients or customers. It is fair for employers to require employees to cover tattoos that would reasonably be seen as inappropriate such as tattoos that depict hateful messages, or graphic violence or sexuality. Asking an employee to cover offensive tattoos is fine but sweeping prohibitions on tattoos and piercings may be found to be unreasonable if brought to arbitration.

Workplace tattoo and piercing policies should therefore:

  • Be applied consistently across race and gender
  • Never discriminate based on religious or ethnic beliefs
  • Distinguish between employee roles (i.e. those that do and do not interact with customers or clients)

Workplace Dress Code Policies

KCY at LAW has significant experience helping employers craft fair and enforceable workplace policies that will protect your business interests while respecting your employees’ rights to individual expression. To book your consultation, give us a call on +001 905 639 0999 or contact us online today!

Bereavement Leave in Canada

I’m so sorry for your loss. I suspect that, if you’ve clicked on this piece it’s because you have recently lost someone. While the amount of comfort I can offer you here is quite limited, I hope that I can give you the information you need to ensure you get the time to grieve and surround yourself with the supportive people in your life.

Bereavement Leave under the Employment Standards Act

Unfortunately, there is no statutory entitlement to paid bereavement leave under the Employment Standards Act (ESA).

However, if you work for an employer who regularly employs 50 or more people, you are entitled to up to 10 days of unpaid personal emergency leave each calendar year. You may use this personal emergency leave as a bereavement leave for the death of an immediate family member including:

  • your spouse
  • your brother or sister
  • you or your spouse’s parent, step-parent or foster parent
  • you or your spouse’s grandparent or step-grandparent
  • you or your spouse’s child, step-child or foster child
  • you or your spouse’s grandchild or step-grandchild
  • your child’s spouse
  • your dependant relative

Though death is usually unpredictable, as with all leaves of absence, you must notify your employer of your intended absence as soon as you can. You should also note that a half-day taken off will count as a whole day of leave.

Evidence to Justify Bereavement Leave - Bereavement Leave in Canada

Evidence To Justify Leave

“evidence reasonable in the circumstances”

A point that sometimes causes confusion is an employer’s right to ask for evidence to justify an employee’s leave. In this regard, the ESA states:

“an employer may require an employee who takes leave under this section to provide evidence reasonable in the circumstances that the employee is entitled to the leave.”

While there is no guidance in the law for as to what exactly reasonable in the circumstances means, as with most pieces of employment legislation, the aim of the law is to balance the rights and interests of both the employer and the employee. What is reasonable will depend on the situation: length of leave requested, frequency of such absences, cost of absence to employer etc. So, for example, there is probably no need to ask an employee for proof of a relative’s death if they are taking a single day off; your employee’s word in this situation should be adequate evidence.

Bereavement Leave under the Canada Labour Code

Unlike employees governed by the ESA, employees under federal jurisdiction are entitled to paid bereavement leave under the Canada Labour Code.

Under the Code, you are entitled to up to three days paid bereavement leave if you have been employed with a company or organization for three consecutive months. If you haven’t been employed this long, you are still entitled to three days’ leave but this time will be unpaid. You are entitled to leave on any working day within the three-day period immediately following your relative’s death.

Bereavement Leave for Family Members - KCY at LAW

Bereavement Leave for Family Members

Family members for whose death you are entitled to take bereavement leave include:

  • your spouse
  • you or your spouse’s parent or this parent’s spouse
  • you or your spouse’s child
  • your brother or sister
  • your grandparent
  • any relative with whom you permanently reside

The three days of leave only apply to regular working days. For example, if your family member dies on Saturday, you would only be entitled to Monday and Tuesday off. Additionally, these leave provisions don’t apply if you are party to a collective agreement.

Bereavement Leave Legal Experts

If you have questions concerning your bereavement leave entitlements then we can help you. Get in touch with the experienced employment law team at KCY at LAW by calling (905) 639-0999 or contact us to find out more.