August 30, 2020 marks an important deadline for provincially regulated employers in British Columbia who have had to lay off employees as a result of COVID-19 but still intend to return the workers to employment.
The Provincial Government amended the Employment Standards Regulation to extend the maximum length of a temporary layoff from employment due to COVID-19 to a maximum of 24 weeks in a period of 28 consecutive weeks (previously the layoff could only last for 13 of the last 20 weeks). To fall within the provisions of this amendment, the temporary layoff must have started before June 1, 2020 and must end on or before August 30, 2020. After this deadline, these temporary layoffs will become deemed terminations. It is possible that a further amendment would extend this time period but the Premier had originally stated that the temporary layoff period would not be extended so a further extension seems unlikely.
This is relevant for employers because on termination an employer is obligated to pay statutory termination pay to the terminated employee. These amounts will range from 0 to 8 weeks regular wages plus vacation pay depending on length of service. The amount will be increased and additional requirements will apply where the number of workers terminated at a single location triggers group termination pay requirements. Employees may also be entitled on termination to common law damages (which can be significant) in addition to any statutory entitlements.
In order to avoid a temporary layoff from becoming a statutory termination, employers may require employees to return to work on or before August 30, 2020.
For employers who have been unable to re-open their businesses due to the pandemic or to recall all workers to active employment, employers may be able to claim an exception to the requirement to pay termination pay if the employment contract has become “frustrated”, meaning impossible to perform. This exception will be unlikely to apply to employers who have been able to reopen their businesses.
Employers may request a further extension of the temporary layoff provisions beyond August 30, 2020 by applying for a variance to the Director of Employment Standards. Employers need to apply by no later than August 25, 2020 to receive a decision on their variance prior to August 30, 2020. The employer will need to have the majority of employees agree in writing to the variance.
For more information on applying for a variance and to download the application form, visit this link.
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