Can my employer temporarily lay me off?

Under the Ontario Employment Standards Act, 2000, an employer is permitted to temporarily lay an employee off for a period of 13 weeks in any period of 20 consecutive weeks. This can be extended to up to 34 weeks in any period of 52 consecutive weeks, provided that the employer complies with certain conditions, such as continuing to the employee’s group benefits or maintaining pension contributions during the temporary layoff period.  

If the employer temporarily lays off an employee in accordance with the Employment Standards Act, then the temporary layoff is not considered, under the legislation, to be a termination. Therefore, there is no obligation to provide statutory termination pay or severance pay.

That said, under the common law, if there is no provision in the employee’s contract of employment that expressly states that the employer can temporarily layoff the employee, then if the employer temporarily lays off the employee, whether permitted under statute or not, this is generally considered a constructive dismissal if the employee does not consent to the temporary layoff. 

An employee who refuses to accept the temporary layoff can treat the relationship at its end and is entitled to constructive dismissal damages. 

Be aware, however, that if you have been constructively dismissed, you have to act promptly in communicating your refusal to accept the temporary layoff.  If you simply sit and wait to be recalled to work without any protest, then through your silence, you may be deemed to have accepted the temporary layoff. This is referred to as condonation or acquiescence to the employer’s breach of the employment contract.  

There is no specific timeline that an employee must act, however, the longer the period of time that passes without protest, the more likely it will be viewed as acquiescence or condonation of the employer’s breach.