CASUAL LEGAL: Updated Rules For Temporary Layoffs

Updated Rules For Temporary Layoffs

By Sean Ward

Reynolds Mirth Richards Farmer LLP

AMSC Casual Legal Service Provider

In response to the continuing COVID-19 pandemic, and through the Restoring Balance in Alberta's Workplaces Act, Alberta has made several changes to the Employment Standards Code this year as it relates to employers’ ability to temporarily lay off employees. As the recent lockdowns result in the closure of many municipal facilities combined with continued financial pressures, it is important to be aware of the updated rules when considering temporary layoffs.

The period of time during which an employee may be temporarily laid off was increased first from 60 days to 120 days, and subsequently to 180 days, provided the layoff is for reasons relating to COVID-19. After that 180 day period has passed, an employee that is not recalled will be deemed to have been terminated. The extension of the period to 180 days also applied to any employees that were already on layoff, to effectively extend the period of time before they would be deemed to have been terminated.

The amendments to the Employment Standards Code also removed the requirement to provide advance written notice to employees before the temporary layoff would commence. Although previously a layoff could occur without notice if unforeseeable circumstances would have prevented it, advance notice is no longer required in any case before imposing a temporary layoff.

An employer must now simply provide written notice informing the employee of the temporary layoff, the date the layoff will commence, and include with that notice a copy of sections 62 to 64 of the Employment Standards Code. Because of the amendments, these sections are different than they were in March 2020, so employers should take caution using earlier versions of notices. Employers should likely indicate that the layoff is related to COVID-19 in specifying that the layoff may last up to 180 days. If the layoff is not related to COVID-19, an employee would be deemed to be terminated if the temporary layoff lasts for more than 90 days within a 120 day period, following the recent changes to the legislation.

The deemed termination will not apply if the employer and employee come to an agreement that the employee will receive some agreed upon pay during the layoff, and the rules may change if there is a collective agreement in place in a union work environment.

It is also important to consider the terms of any applicable employment agreement or policies in place that may impact on the ability to issue temporary layoffs, and you may wish to get legal advice about any of the potential risks arising from specific temporary layoffs, especially those that are now potentially much longer term under the new rules.

To access AMSC’s Casual Legal Helpline, AUMA members can call toll-free to 1-800-661-7673 or email casuallegal [at] amsc.ca (casuallegal[at]amsc[dot]ca) and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact riskcontrol [at] auma.ca (riskcontrol[at]auma[dot]ca), or call 310-AUMA (2862) to speak to AUMA’s Risk Management staff. Any Regular or Associate member of the AUMA can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.