The employer must give the employee notice of temporary layoff. Temporary layoff notice must be provided to the employee before the layoff starts. To be valid, the notice must:
- be in writing
- state that it’s a temporary layoff notice and its effective date
- include sections 62-64 of the Code
Lack of proper notice
If proper notice of temporary layoff is not given, the employee may have been unjustly or constructively dismissed. Some courts have also held that while the Code permits an employer to temporarily lay off an employee in the absence of a collective agreement or contract allowing layoff, the employee maintains the right to sue for constructive or wrongful dismissal if laid off in those circumstances.
Length of temporary layoff
In Alberta, the maximum duration of a temporary layoff is 90 days in a 120-day period. The employee is terminated on the 91st day if they have not resumed work. Termination pay must be paid if the employee is entitled.
The period of temporary layoff can be extended if the employer makes regular payment to or on behalf of the employee, such as continuing to pay wages, employee pensions or benefits. The employee must agree to accept these payments in lieu of a firm limit of the length of the layoff. Termination pay is payable when payments in lieu cease.
Recall of employee during temporary layoff
To request that an employee return to work after a layoff, an employer must serve a recall notice to the employee. To be valid, the notice must:
- be in writing
- say that the employee must return to work within 7 days from the date the notice was served to the employee
Serving a recall notice
There are several ways to serve a recall notice to an employee. An employer can:
- give the notice to the employee in person, either at work or at the employee’s address
- leave the notice at the employee’s address with a person who appears to be 18 or older
- send the notice by mail or registered mail
- send the notice by fax or email
Terminating the employment
If the employee doesn’t return to work within 7 days of being served the recall notice:
- the employer can terminate employment
- the employee would not be entitled to termination notice or termination pay
If there is a collective agreement in place, and it contains recall rights following layoff, the employment ends and termination pay is owed when recall rights expire.
School employees and school bus drivers
The maximum days rule does not apply to school employees and school bus drivers if they work until the end of one school year and continue to work, or have the opportunity to work for, the same employer at the beginning of the next school year.
Employers should be aware of the rules regarding group terminations when laying off large numbers of employees. These rules do not affect temporary layoffs, but do come into effect when employees are terminated.
Learn more about group terminations.
How the law applies
Part 2, Division 8 of the Employment Standards Code provides the process required to terminate employment relationships, entitlements to termination notice and pay, temporary layoff and recall rights.
Division 8 also outlines circumstances in which an employer or an employee may not be required to provide termination notice under the Code.
Disclaimer: In the event of any discrepancy between this information and Alberta Employment Standards legislation, the legislation is considered correct.