COVID-19 Update: Further Extension of Temporary Layoff Periods In British Columbia
On June 25, 2020, British Columbia’s Ministry of Labour provided a further extension to the maximum temporary layoff period under the Employment Standards Act, RSBC 1996, c. 113 (the “Act”) to assist employers and employees during the COVID-19 pandemic. As a result, the maximum period for a temporary layoff under the Act is now 24 weeks, ending on or before August 30, 2020. This extended temporary layoff period does not apply to layoffs commencing on or after June 1, 2020.
Prior to announcing this extension, Labour Minister Harry Bains had announced to BC business groups, in a letter dated June 18, 2020, that that the temporary layoff period would not be extended [source]. Instead, Minister Bains raised the option of applying for a variance under section 72 of the Act, which would permit the Province to decide temporary layoff extensions for individual businesses on a case-by-case basis. This option remains available for employers who require a further extension to the maximum temporary layoff period beyond August 30, 2020.
This extension of the temporary layoff period to 24 weeks by the Province follows a decision by the federal Minister of Labour earlier this week to extend time periods for temporary layoff periods for federally-regulated employees, previously discussed here: blog post.
Previous Temporary Layoff Extension
On May 4, 2020, British Columbia announced the first extension of the temporary layoff period, increasing the maximum period from 13 to 16 weeks in any consecutive 20-week period. The Province added section 45.01 to the Employment Standards Regulation (the “Regulation”), providing that the maximum period for a temporary layoff due in whole or in part to the “COVID-19 Emergency” increased to 16 weeks in a consecutive 20-week period.
In the Regulation, the “COVID-19 Emergency” is defined as an emergency emanating from:
- the March 17, 2020 notice by the provincial public health officer, pursuant to section 52(2) of the Public Health Act, and
- the state of emergency declared on March 18, 2020, including extensions of this declaration under section 9 of the Emergency Program Act.
In its press release, the Province noted that the change is not intended to be permanent. It also explains how this extension aligns with the then 16-week maximum period of eligibility for the federal Canada Emergency Response Benefit (“CERB”).
The new changes amend section 45.01 of the Regulation to increase the maximum layoff period to 24 weeks in any 28-week period, ending on or before August 30, 2020. Layoffs commencing on or after June 1, 2020, are excluded from section 45.01 of the Regulation, and the regular definition of temporary layoff in the Act – 13 consecutive weeks in a 20-week period – applies to all such post-June layoffs.
As noted above, employers are still able to apply for a variance of the temporary layoff period pursuant to section 72 of the Act; however, to do so employers must prove that at least 50% of their employees support the variance, and approval of the variance remains at the sole discretion of the Director.
How Does Extending the Temporary Layoff Period Affect Employers?
Despite these series of amendments to the temporary layoff period, including British Columbia’s recent extension of the maximum temporary layoff period to 24 weeks, the requirements of a valid temporary layoff in the province remain the same.
As discussed in a previous post, under the Act, a temporarily layoff may be a termination of employment unless the layoff is:
- allowed under a collective agreement;
- expressly provided for in the employee’s written agreement*; or
- agreed to by the employee.
*In certain circumstances, where there is an established practice of temporary layoffs in an industry, temporary layoffs may be an implied term of employment, giving the employer the right to unilaterally make such a layoff.
This means that without a contractual term allowing for a temporary layoff and in the absence of an employee’s consent, a layoff in BC may constitute termination of employment under the Act. Furthermore, a layoff, even if temporary, may result in a constructive dismissal claim or grievance where the layoff is not permitted under the terms of contract or collective agreement.
This update is part of our continuing efforts to keep you informed about the impacts of the COVID-19 pandemic on employers in Canada. Check our COVID-19 Hub and our McCarthy Tétrault Employer Advisor Blog for further updates, including in-depth analysis of emergency legislation and government orders in the federal and various provincial jurisdictions. If you need assistance, please reach out to any member of our National Labour & Employment Team.