Many employers are laying off or suspending employees who refuse to get vaccinated. Other employers are placing employees on unpaid leave for a period before eventually terminating them. Some employers are even attempting to avoid their legal obligations to provide employees with severance packages by placing them on unpaid leave or laying them off.

If your employer has placed you on unpaid leave without giving you any compensation, do not just accept the unpaid leave or lay off.  Consult an experienced employment lawyer immediately, as you may have been dismissed and be entitled to a severance package.

Under the common law, your employer does not have the right to lay you off or place you on unpaid leave. Unless you agree to the terms of a lay off, a unilateral layoff by your employer is a substantial change to your employment agreement and is a constructive dismissal.

However, on rare occasions employers have included clauses in employment agreements that permit them to lay off employees so long as they comply with the Employment Standards Act (“ESA”). The ESA permits employers to place employees on temporary layoff for 13 weeks in a period of 20 weeks, or 13 weeks in any period of 52 weeks in some circumstances. Agreements created recently may include such temporary layoff provisions. Do not sign any documents until a lawyer reviews them, as they may limit your severance and termination rights.

If your employment agreement does not have a clause permitting your employer to place you on temporary layoff, or your employer has failed to recall you within the timelines prescribed by the ESA, you could have a claim for constructive dismissal. For longer term employees this means the employer may owe up to two years in severance and benefits including the extension of health, dental, and other benefits and bonuses. We should also note most offers are low, sometimes as low as 10% of what you are owed. So have a lawyer review any offer.

The Ontario Regulation: Infectious Disease Emergency Leave under the ESA (“IDEL”) has created some confusion. Many employers are laying employees off pursuant to IDEL, which was recently extended until January 1, 2022. Many employees could claim constructive dismissal if they have been placed on IDEL. In our experience, most employers prefer to negotiate a severance package rather than fight and spend legal fees.

If you have a non-union employment agreement with no terms permitting your employer to lay you off, you are likely entitled to a severance package. The size of this severance package will depend on whether you are entitled to common law reasonable notice or only the ESA minimum standards. We recommend assessing your position immediately to protect your rights.

These are challenging times. We understand.

#laidoff #COVID19 #constructivedismissal #employmentlawyerontario

If you need guidance from an experienced employment lawyer, Hum Law Firm can ensure you receive a fair severance package.

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