Member Article

On May 4, 2020, the B.C. government passed an Order in Council to add a new provision to the BC Employment Standards Regulation (the “Regulation”) during the current provincial state of emergency. Temporary layoffs related to COVID-19 can now last up to 16 weeks in a 20 consecutive week period without triggering termination of employment.

This is the second change to B.C. employment standards legislation since the start of the COVID-19 pandemic. Read our earlier blog post to read about the first amendment to the B.C. Employment Standards Act (“ESA”), which introduced two new unpaid leaves of absence: COVID-19 leave of absence and sick leave. In that blog post, we commented about B.C.’s inflexible temporary layoff regime in comparison to other Canadian provinces. Prior to yesterday’s amendment, the ESA only permitted employers to temporarily lay off employees for a maximum of 13 weeks in a period of 20 consecutive weeks, with no ability to extend that period (except under the onerous process for an ESA variance).

Temporary Layoff Period Extended

The latest change to the Regulation allows B.C. employers to extend a temporary layoff to up to 16 weeks in a period of 20 consecutive weeks, if the following criteria are met:

1. The employee is laid off and does not have a right of recall under a collective agreement; and
2. The COVID-19 emergency is a cause of all or part of the layoff.

Employees employed as loggers are specifically exempt from the new layoff period amendment, as they are subject to special layoff rules under the Regulation.

If this new extended layoff period is exceeded, then the employee’s employment is automatically deemed to have terminated on the first day of the layoff and the employee is entitled to statutory termination pay.

Temporary Change Only

In its announcement of the change to the Regulation, the BC government explained that this is intended to align the temporary layoff provisions in the ESA with the federal Canada Emergency Response Benefit Period. The government has also stated that this extended layoff period is not going to be a permanent change to employment standards legislation, and will be repealed “when no longer needed”.

Still Need Agreement

Despite this amendment, keep in mind that the BC Employment Standards Branch will continue to take the position that the right to layoff, even one caused by COVID-19, must be: (1) expressly addressed in a written employment contract; (2) implied by virtue of industry custom; or (3) voluntarily agreed to by the employee. Unfortunately, the amendments have not provided any relief for employers from this requirement. 

Please reach out to a member of the Labour and Employment Group for the latest advice for your business and employees. 

NOTE: Due to the rapidly changing legal landscape with respect to COVID-19 and our government’s response to the pandemic, please understand that any blog posts written in the past may not reflect the current applicable obligations, rights and benefits of employers and employees.

 

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