Declared Emergency Leave vs Layoff

Direction for municipal employees working in libraries, child care, theatres/concert venues and recreational facilities

Under regulations 51/20 and 104/20 of the Emergency Management and Civil Protection Act (EMCPA), the following municipal facilities were closed: library, child care, theatres/concert venues, and recreation (indoor and outdoor).

Under section 50.1 of the ESA, employees in these facilities are eligible to apply for Declared Emergency Leave (DEL).

With statutory leaves, such as DEL employees continue to participate in benefit plans, have the time counted toward their length of employment, service and seniority, and have a right to be reinstated at the end of the leave.

Note

If the employer has told you that they plan to layoff employees in the designated facilities listed above, those employees should have the option to go on a DEL.

Once laid off, it is unclear whether they will then have access to a DEL.

Suggestion to proceed as follows:

  1. If you have not received a letter from the employer asking employees in the above designated facilities to go on a DEL or accepting a layoff, please contact your municipal employers and ask them what their plans are.

  2. Review the notice of temporary layoff provisions in the collective agreement to determine if the length of notice which would be paid at 100% for a period of time is superior to agreeing to take the DEL.

Please note: if the employer is stating that because the employees are listed in regulation under the EMPCA, they are not subject to the terms of the notice of layoff provision in the collective agreement, please file a grievance and contact your coordinator. The union is taking the position that the regulation that ordered the closure of these facilities did not affect collective agreement entitlements regarding layoff.

  1. Review the layoff language with regards to the length of time the Employer is obliged to maintain benefits while on layoff.

  2. If the employee opts to take the DEL, they continue to participate in each type of benefit plan (including OMERS pension contributions) unless they elect in writing not to. The employee may choose not to maintain benefits if they are required to pay a portion of the premiums.

  3. At this time, on layoff, the employee cannot opt to buy back OMERS pension.

  4. On layoff, there may be no requirement for the Employer to continue to pay benefits (dependent on language in CA).

  5. On either the DEL or a layoff, the employee should immediately apply for EI.

Recommendations:

  1. If the employee has good notice of temporary layoff language (3 months or more) which keeps them at 100% salary during the notice period, then that should be their first choice.

  2. Only proviso to recommendation #1 is that if the employee is part-time with few hours, going immediately on EI at $2,000/month maybe preferable than pay in lieu of notice of temporary layoff.

  3. Failing good notice of layoff language, the employee should consider taking the DEL to maintain benefits, allow for pension buy-back, and immediately apply for EI online.

  4. Nothing precludes an employee from exhausting the length of notice of layoff or pay in lieu provision in the collective agreement and then applying for a DEL.