Temporary lay off timeline extended to 26 weeks from 13… temporarily

Twila Reid and John Samms

On Friday, June 12, 2020, the Government of Newfoundland and Labrador announced it has extended the time period under section 50 of the Labour Standards Act (“the Act”) that converts a temporary layoff into a permanent termination.

The Order doubles the amount of time a person may be considered to have been temporarily laid off to 26 weeks from 13 weeks, so long as that timeframe is captured within a period of 33 consecutive weeks between March 18 and September 18, 2020. If a worker receives pay during the 33 week period, the number of days for which the employee is paid does not count toward the 26 week lay-off period. The deadline to make a complaint is extended to 12 months from the date the employee’s contract is terminated (the previous deadline was 6 months).

This is a temporary change as the Act itself has not been amended. The Lieutenant-Governor in Council made the Order through the Temporary Variation of Statutory Deadlines Order, made under the power of section 6 of the Temporary Variation of Statutory Deadlines Act, a creature of the provincial government’s COVID-19 response that impacts a myriad of statutory deadlines.

This move may temporarily ease some of the pressure on employers as the normal operation of the Act would have employers facing decisions to permanently terminate employees even though many businesses cannot operate as a result of ongoing COVID-19 restrictions. This change allows employers to take more time to consider how best to bring employees back to work or adjust their business in accordance with the so-called “new normal”.

Employers should seek specific legal advice to understand how the above Order is applicable to their particular circumstances, including what further notice(s) if any they should provide to laid off employees.

The Order, as published in the Gazette, states as follows:

The Temporary Variation of Statutory Deadlines Order is amended by adding immediately after section 4 the following:

4.1(1) Notwithstanding section 50 of the Labour Standards Act, where an employer temporarily lays off an employee on or after March 18, 2020 and before September 18, 2020 and the lay-off exceeds 26 weeks in a period of 33 consecutive weeks, the employee shall, for the purposes of Part X of that Act be considered to have been terminated at the beginning of the 26 week period.

(2) For the purposes of subsection (1), a day during the period of 33 consecutive weeks for which an employee receives pay, including pay the employee receives for a public holiday occurring during that period, shall not be counted in the calculation of the 26 week lay-off period set out in subsection (1).

(3) Where the 6 month period referred to in subsection 62(3) of the Labour Standards Act falls on or after March 18, 2020 and before September 18, 2020, a person may, notwithstanding subsection 62(3) of that Act, file a complaint within 12 months of the date the employee’s contract is terminated.

This article is provided for general information only. If you have any questions about the above, please contact a member of our Labour and Employment group.

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