How to recall employees back to the office

“A temporary layoff occurs when an employer suspends an employee’s work duties and pay for a limited time but does not end the employment relationship,” added Stepanian. “The expectation is that the employee will be recalled back to work.”

A regular termination in Ontario ends the employment relationship in one of the following ways:

1. Termination without cause: The employee is dismissed at any time and for any legal reason and therefore the employee is generally entitled to reasonable notice or termination pay in lieu of notice
2. Termination for cause. An employee is fired for serious and wilful workplace misconduct or wrongdoing and not entitled to notice of termination, termination pay, or severance pay.

Under the Employment Standards Act a temporary layoff has several dictations to follow – it’s not a case of just laying off a worker and recalling them whenever you feel like it. According to Stepanian, the ESA dictates that a layoff can last;

• not more than 13 weeks of layoff in any period of 20 consecutive weeks
• or more than 13 weeks in any period of 20 consecutive weeks, but less than 35 weeks of layoff in any period of 52 consecutive weeks, only if:
  • the employee continues to receive substantial payments from the employer;
  • or the employer continues to make payments for the benefit of the employee under a legitimate group or employee insurance plan (such as a medical or drug insurance plan) or a legitimate retirement or pension plan;
  • or the employee receives supplementary unemployment benefits;
  • or the employee would be entitled to receive supplementary unemployment benefits but isn't receiving them because they are employed elsewhere;
  • or the employer recalls the employee to work within the time frame approved by the Director of Employment Standards;
  • or the employer recalls the employee within the time frame set out in an agreement with an employee who is not represented by a trade union

When a temporary layoff finally comes to an end, HR leaders need to follow the ESA guidelines in order to call the employee.

"For example, in Ontario, if the employment contract properly uses the ESA's temporary layoff provisions, then an employee who passes either the 13 week or the 35-week temporary layoff scenario limits set under the ESA, then then employer is considered to have terminated the employee's employment."

When recalling employees, consider workplace health and safety – as well as prioritizing personal wellbeing.

“Think about how many employees you can safely recall to work while observing physical distancing and other health and safety measures,” said Stepanian. “If it is not safe to bring back your entire staff at once, consider a phased return to full capacity. Use objective criteria when recalling staff. Remember, a recall notice should give employees sufficient notice to make arrangements to return to work.”

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