As of April 6, 2020 the Alberta government has extended the time an employer can temporarily lay off an employee without pay from 60 days to 120 days. This replaces the previous provision from the Employment Standards Code that allowed for a temporary layoff of up to 60 days in any 120 day period.
Employers who are governed by Alberta legislation should be aware that a temporary layoff notice must comply with the following:
1. The notice must be in writing;
2. State that it is a temporary layoff notice and its effective date; and
3. Include section 62 through 64 of the Code.
In addition to the above requirements, an employer is still required to give notice of a temporary layoff. This timeframe varies based upon multiple factors but is primarily guided by an employee’s length of service. Again, the usual requirements of notice may not be necessarily adhered to because of the extraordinary events of Covid-19.
As the Covid-19 crisis continues, many employers are finding that they are not in a position to call their employees back to work. In these circumstances they will be required to immediately pay out termination pay as required in the employment contract, but in any event, no less than statutory minimum for pay in lieu of notice as set out in the Employment Standards Code.
Both employers and employees should be aware that although provincial legislation permits temporary layoffs, it does not prohibit an employee from refusing to accept a temporary layoff. In such an instance, unless the employment agreement expressly allows and employer to temporarily layoff an employee, they may find themselves in a position facing payout of potentially 24 months or more of an employee’s wages and benefits.
As the intersection of legislation o temporary layoffs and common law constructive dismissal can get complexed, it is often in the interest of both employers and employees to seek legal guidance from an employment lawyer before deciding upon their course of action.
By Christopher Younker
Note: This article provides general commentary and is in no way intended to replace the need to consult with a legal professional concerning the specific circumstances of your situation. This article should not be construed or relied upon as legal advice.
