Ontario’s ESA spends real detail on how long a temporary layoff can run before it becomes a termination — and then exempts most construction crews from the notice and pay that clock exists to protect.
Key takeaways
Ontario’s Employment Standards Act spends real detail on how long a temporary layoff can run before it turns into a deemed termination — and then, for most construction crews, exempts the industry from the very termination notice and pay that make that clock consequential everywhere else. Getting the sequencing right means understanding both halves, not just the first one.
The ESA’s definition of what counts as a layoff week is the foundation everything else sits on: a week of lay-off is a week in which the employee earned less than half of what they would ordinarily earn, or earn on average, in a week. From there, a temporary layoff can run not more than 13 weeks of lay-off in any period of 20 consecutive weeks; beyond that, it can extend to more than 13 weeks but less than 35 weeks in any period of 52 consecutive weeks, with conditions such as continued substantial payments or benefits; and beyond 35 weeks, it becomes a deemed termination unless the employer recalls the employee within a union-approved timeframe. As of November 27, 2025 added a further option: a layoff can extend beyond 35 weeks but under 52 weeks within 78 consecutive weeks, with written agreement and Director approval.
For most industries, that clock exists to stop an employer from calling a layoff “temporary” indefinitely to avoid the notice and pay that come with an actual termination. Construction runs on a different rule: the ESA exempts employees who are “employed in construction” from its notice-of-termination and termination-pay requirements, including employees doing off-site work who are commonly associated in work or collective bargaining with employees who work at the construction site. The exemption covers the notice-of-termination and termination-pay requirements directly — the same requirements the layoff-duration clock exists to protect.
That does not make layoffs in construction unregulated — it changes what the clock is protecting. Elsewhere in Ontario, tracking the 13/20 and 35/52 thresholds matters because crossing them triggers a statutory notice and pay obligation. For a crew that clearly falls inside the construction-employee exemption, that specific obligation is not in play regardless of how long the layoff runs, which shifts the real sequencing question from “when does the ESA clock force our hand” to “how do we sequence recall fairly and predictably when the statute does not set the order for us.” The exemption’s own wording — hinging on whether work is genuinely associated with a construction site, on-site or off — is also worth checking against the actual role before relying on it, rather than assumed from a job title alone.
For a unionized crew, the sequencing question is largely already answered: recall order runs on the collective agreement, typically by seniority within a trade or classification, and the employer’s job is to document that the recall followed the agreement’s terms rather than to invent an order of its own.
For a non-union crew, where the ESA exemption removes the statutory notice trigger but not the practical need for fairness and documentation, a written recall policy is what stands in for the structure a collective agreement would otherwise provide — a default order (commonly last-laid-off, first-recalled, or a documented skills-and-project-fit basis), applied consistently and recorded in writing when an exception is made, so a departure from the default has a reason attached to it rather than looking arbitrary after the fact. Long-standing subcontractor relationships deserve a second look here too: where someone has effectively worked as a dependent contractor rather than a true independent contractor, that classification carries an entitlement to reasonable notice on termination, similar to an employee, a separate question from the ESA construction exemption entirely and one worth checking before assuming a subcontractor arrangement carries no notice obligation at all.
A non-union framing crew of 14 is laid off in late November as a project winds down, with a planned recall for a spring start. Week-count tracking against the 13/20 threshold is worth keeping for internal recordkeeping discipline, but because the crew clearly falls inside the construction-employee exemption, crossing that threshold does not itself trigger a statutory notice-pay obligation the way it would outside construction. What actually protects the company is a documented recall policy: the 14 names, the order they will be called back in, and the basis for that order, set down in writing before the layoff rather than reconstructed afterward if a recall dispute arises.
If two framers from that crew have in practice been treated more like standing subcontractors — invoicing personally, but working exclusively for this company for several years with no other clients — the recall decision for those two deserves the dependent-contractor check above before being folded into the same generic non-recall list as everyone else. Certification status matters at the recall stage too: before anyone on the list is actually brought back, the certification tracker should confirm each returning worker’s Certificate of Qualification is still current, since a layoff spanning a renewal anniversary is exactly the situation a routine tracker is least likely to catch on its own.
The base rule allows not more than 13 weeks of layoff in any 20 consecutive weeks, or up to 35 weeks in 52 consecutive weeks with conditions such as continued substantial payments or benefits. As of November 27, 2025, a further option allows extension beyond 35 weeks but under 52 weeks within 78 consecutive weeks, with written agreement and Director approval.
Yes. The ESA exempts employees employed in construction -- including off-site workers commonly associated in work or collective bargaining with employees at the construction site -- from its notice-of-termination and termination-pay requirements.
No. The exemption removes a specific statutory notice-and-pay obligation, not the practical need for a fair, documented recall order -- especially for non-union crews, where a collective agreement isn't setting that order automatically.
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