Temporary layoffs

Basic rules

The employer must give the employee notice of temporary layoff. 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

The following notice must be provided unless there is a collective agreement that states otherwise, or there are unforeseeable circumstances:

• at least one week prior to the date layoff begins if the employee has been employed by the employer for less than 2 years
• at least 2 weeks prior to the date layoff begins if the employee has been employed by the employer for 2 or more years
• if there are unforeseeable circumstances (such as COVID-19), employers are required to provide as much notice as possible given the circumstances

Employee eligibility

• All employees who are temporarily laid off are entitled to proper notice. The timing of the notice may vary if unforeseeable circumstances occur (such as COVID-19).

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 60 total days within a 120-day period.

On the 61st day of a temporary layoff, the employee’s employment is considered to be ended, and the employer must pay termination pay.

The period of temporary layoff can be extended beyond 60 days if the employer makes regular payment to or on behalf of the employee, such as continuing to pay wages, employee pensions or benefits and the employee agrees to 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

Collective agreement

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 60-day 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.

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.

Contact

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