The economic upheaval that began with the arrival of COVID-19 has raised important questions about job security and employment insurance benefits for many Canadians. With the onset of the pandemic, temporary layoffs and job losses arrived quickly, which affected thousands of Canadian households.
The Canadian government responded quickly to this situation, offering new forms of income support to many workers. Given the evolving nature of the pandemic, and the swift rollout of income support initiatives, it comes as no surprise that many Canadians have questions about how these measures might apply to their situations.
If you were temporarily laid off as a result of COVID-19, or if your employment conditions were affected by the pandemic, there could be a variety of employment law implications you might not be aware of.
To help make sure that all Canadians are well informed about their employment rights and benefit entitlements, JPAK employment lawyers have created this helpful employment insurance (EI) and layoff walkthrough.
Read on for answers to common EI questions, such as “Can I collect EI on a temporary layoff?”
Contact JPAK Employment & Labour Lawyers for personalized legal advice concerning temporary layoffs, termination entitlements or changes to your employment agreement.
Temporary Layoffs & Employee Rights
A temporary layoff is when there is an interruption to regular work and compensation, but an ongoing relationship remains between the employer and the employee, with the expectation that the employment relationship is ongoing and that regular work will resume at some point.
For employees with a collective agreement in place, the time frame for being called back to work is negotiated between union representatives and the employer, whereas non-unionized employees deal with their employer on a case-by-case basis.
Depending on the details of any employment contract in place, if an employer temporarily lays off a worker against the terms of their contract, it could be considered a constructive dismissal, triggering an obligation on the part of the employer to provide a severance package.
Can I Collect EI Benefits on a Temporary Layoff?
Yes, eligible workers who have accrued enough insurable hours/earnings can generally collect EI benefits. The employer must issue a record of employment (ROE), which is filed with Service Canada. This must be done within five days of an interruption in earnings.
When a Temporary Layoff Amounts to Constructive Dismissal or Termination
Prior to the pandemic, a temporary layoff could last for up to 13 weeks in a 20-week period. This can be extended to 35 weeks out of a 52-week period in certain circumstances, for example, if the employer continues to maintain group benefits coverages or provides EI top-up payments during the temporary layoff period.
If the employer fails to recall the employee back within the applicable time frame, then the layoff automatically becomes permanent and the employee is entitled to be paid a severance package.
As a result of the pandemic, employers temporarily have greater leeway to further extend temporary layoffs. The Province enacted the Infectious Disease Emergency Leave regulation (“IDEL”) provisions. During the COVID-19 period (March 1, 2020 to September 25, 2021) a temporary layoff is deemed to be an IDEL, meaning employers can place employees on prolonged temporary layoffs without triggering the obligation to provide statutory termination pay and severance pay. The employer may, however, still be required to provide a severance package under the common law.
Understanding Employment Insurance
Employment insurance programs offer temporary income support to eligible workers in specific circumstances. As they relate to the COVID-19 pandemic, most benefits awarded fall into one of the following categories.
EI Regular Benefits
These longstanding benefits are designed to support anyone who loses their job for reasons outside of their control, such as lay-offs, work shortages or corporate restructuring initiatives. Canadians who unable to find new work, but are ready and willing to re-enter the labour force, are eligible for regular EI benefits if:
- The employee was employed in insurable employment (i.e. made EI contributions during their employment);
- The job loss was not related to misconduct or other reasons amounting to cause for dismissal;
- The employee has been without work or pay for at least seven consecutive days in the last 52-week period;
- The employee worked the required minimum number of insurable employment hours (which varies based on the local unemployment rate during the qualifying time period for each case) during the last 52-week period.
- The employee is ready, willing and able to work, and are actively looking for new employment
EI Sickness Benefits
Unlike regular benefits, sickness benefits are designed to support people when they are unable to work for medical reasons, including illness, injury, self-isolation, or any medical condition that prevents them from performing their regular activities. Sickness benefits allow claimants to receive up to 55% of their insurable weekly wages (to a maximum of $595/week) for up to 15 weeks.
A medical certificate is normally required to claim sickness benefits, however, this requirement was waived for COVID-19 related claims.
Workers who are unable to work for medical reasons can claim EI sickness benefits if they accumulated at least 600 insured work hours in the 52-week period prior to the start of their claim or since the start of their last claim, depending on which is shorter.
JPAK Employment Lawyers
At JPAK, we are passionate about helping the many employees who were directly and indirectly affected by COVID-19. Our employment and labour lawyers understand workplace rights, and they can let you know what can be done to make the best of your situation.
With experience in wrongful dismissal, constructive dismissal and employment standards compliance cases, our team can help you make sure you get all the benefits you are entitled to and protect your employment rights.
For more information from employment & labor lawyers that know these issues well, book a meeting with a member of our team today for personalized legal advice.