Change to Employment Agreement Extends Limitation Period

Work at my business has slowed down quite a bit this year. I currently have 11 employees but there is not enough work to go around. I should be getting a set of new contracts that will keep everyone busy this spring, but I’d like to make some temporary layoffs in the meantime to avoid having to let anyone go for good. I’ve discussed this with business colleagues who told me that temporary layoffs are not permitted for non-unionized employees. What are my options?‍

The law applicable to temporary layoffs in Ontario can be confusing. The Employment Standards Act does allow temporary layoffs of up to 13 weeks in a 20 week period. In certain seasonal industries, such as construction, temporary layoffs over the winter months are fairly common. However, in other workplaces courts in Ontario have treated temporary layoffs as constructive dismissals and have ordered employers to provide termination and severance pay.

In recent years, some Ontario court decisions have allowed temporary layoffs provided employers comply with both the Employment Standards Act and the terms of the employee’s contract. Depending on the nature of the work, such layoffs may even be permitted when an employee is working with an unwritten contract. A temporary layoff is also more likely to be permitted if an employee remains entitled to benefits and can access Employment Insurance during their time off. During any such layoff it is important to inform the employee that the layoff is temporary and to provide them with a return to work date. Finally, a temporary layoff should not be used as a form of discipline to punish an employee for misconduct – that will most certainly result in a claim for constructive dismissal.

I have a chronic medical condition which unfortunately has become worse over time. For the last two years I have been receiving benefits through my employer’s disability insurance plan. Recently, the insurer wrote to advise me that the terms of the policy have changed and that they now require additional medical information - why is this happening and am I at risk of losing my benefits?

‍Most disability insurance policies provided by employers have different coverage for different periods of time. For the first two years of an employee’s disability benefits are generally provided on the basis that you cannot perform the essential duties of your existing occupation. The definition of disability changes after two years in most policies.

One of the first steps in your case is to obtain a copy of the policy from your employer. This policy will usually include a brief description of the criteria that an employee must meet to be entitled to disability benefits. In the vast majority of cases after two years of paying benefits policies will limit an employee’s entitlement to further benefits unless the employee is unable to work in any occupation to which they are reasonably suited.

Because of this change to the disability definition, insurance companies will generally review files and seek additional medical information if someone has been receiving benefits for two years. However, Ontario courts have recognized that whether an individual is able to perform any occupation depends not only on their particular disability, but also their basic skill set and educational background. In many cases insurers won’t cut off benefits once they have completed their review and have received additional medical information. However, if you and your insurer disagree about whether you are capable of returning to the workforce it may be time to contact a Lawyer.

I recently changed roles at work. My new title is “Accounts Manager” and I am responsible for all the company’s accounts payable and receivable. I also help other staff price our products and develop new accounts. I am very happy about my new role but my job used to be “9 to 5” and now I have to work late and on weekends. I asked my boss about overtime but was informed that managers and supervisors do not receive overtime pay. Is this true?

For most employees in Ontario overtime hours start after 44 hours of work in a week. For every hour worked in excess of 44 hours an employee is supposed to receive time and a half.

Under the Employment Standards Act there are exceptions to the general rule including that managers and supervisors do not receive any overtime compensation. For this “manager exception” to apply, an employee generally needs to be performing work that involves the supervision of other employees in a leadership role as opposed working in general administrative duties. Also, the exempt employee must be working in the manager role the majority of the time while at work - not just every now and then. The fact that someone’s job title includes the word “manager” or “supervisor” does not determine their entitlement to overtime pay. Rather, it depends on what the actual duties of the employee are.

Although many job titles, such Accounts Manager, include the word “manager” this does not necessarily mean you don’t get overtime pay. If your job does not involve supervising other employees this is a good indication that you may be entitled to overtime compensation. For more information you can seek legal counsel or examine the Ministry of Labour’s website at http://www.labour.gov.on.ca/.