COVID-19 Update: A Possible Exception to the End of BC’s COVID-19 Temporary Layoff Period

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On June 25, 2020, British Columbia’s Ministry of Labour extended 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 due in whole or in part to the “COVID-emergency” increased to 24 weeks in any 28-week period, ending on or before August 30, 2020 (the “Extended Layoff”). We previously discussed this Extended Layoff and its prerequisites here: blog post

Under section 45.01 of the Employment Standards Regulation (the “Regulation”), the Extended Layoff must end on or before August 30, 2020. If an Extended Layoff continues beyond August 30, 2020, it will be deemed a termination of employment.  However, where an employer is not able to recall the workforce before the end of August, but a reasonable plan is in place to recall employees in the relative near future, an exception may be available.

Employers can apply to further extend the COVID-emergency layoff by seeking a variance under section 73 of the Act.  Typically, an application for a variance of the Act is filed by submitting a letter to the Director of Employment Standards.  However, for applications related to an extension of a COVID-19 temporary layoff, the Ministry of Labour has launched a designated portal with information about: qualifying for a variance; the benefits of an extended layoff period for for both employers and employees; and the steps for seeking a variance.

As set out in the online application portal, the application for a COVID-19 temporary layoff variance must include the following information:

  • The legal or operating name of the business;
  • The names and contact information for business owners or partners;
  • The physical address for locations where the affected employees work;
  • The total number of employees affected by the application; and
  • Proof that a majority of the employees affected by the variance support the application. To facilitate this, the Ministry’s website contains a tool to help electronically document employee support.

The Ministry recommends that all documents relied upon in support of the application be submitted as one file through the online application portal.  Further, as stated on the Ministry website, “[a]pplications must be received by August 25, 2020, in order to receive a decision by August 30, 2020.”  Employers also have the option of submitting the application by email; however, this type of application may take longer to process, so applications should be submitted as soon as possible, but in any event before August 25, 2020.

As noted above, an Extended Layoff that continues beyond August 30, 2020, will be deemed a termination of employment.  Accordingly, employers should have a contingency plan in place to address the risk that their application may be denied or not processed on or before August 30, 2020.

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.

Layoff Employment Standards

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