On May 4, 2020, the British Columbia Government announced temporary changes to the province’s employment standards legislation – the Employment Standards Act.  These changes, which take effect immediately, extend the period of time in which a temporary layoff may occur, prior to being deemed a permanent layoff.  This change impacts temporarily laid off staff, who are not covered by a collective agreement.

Historically, under the Employment Standards Act (the “Act”), a temporary layoff longer than 13 weeks in any 20-week period was considered a permanent layoff.  Once a permanent layoff occurred, the employment relationship ceases, and employers may be required to provide employees with notice of termination, or pay in lieu of that notice.

Today’s change to the Act provides that temporary layoffs relating to the COVID-19 pandemic can be extended to 16 weeks in any 20 week period.

While the Employment Standards Branch has historically taken the view that an employee must consent to a temporary layoff unless it is a term of their contract or customary in their industry, the Act does not specifically state consent is required. 

During the COVID-19 pandemic, many employers have temporarily laid off staff without seeking or obtaining consent.  While it is prudent to obtain consent before a temporary layoff, it was simply not practical for most employers in the circumstances of the pandemic.

Today’s modest revision to the Act allows employers to extend temporary layoffs a further three weeks (from 13 to 16 weeks) before the temporary layoff potentially becomes a “deemed termination” under the Act.  This provides employers with some additional latitude in managing their workforce during the pandemic.

At this point, if a temporary layoff becomes a deemed termination under the Act, it remains unclear whether that termination will actually trigger any obligation to provide notice of termination, or pay in lieu of notice under the Act. 

Section 65(1)(d) of the Act exempts employers from the obligation to provide notice of termination, or pay in lieu of notice, where it is the result of an “unforeseen circumstance”.

While it seems logical the COVID 19 pandemic would be an unforeseen circumstance which would relieve an employer from the obligation of termination pay in these circumstances, unfortunately, to date, neither the Branch nor the Government have addressed or clarified that situation. 

We will continue to update our clients with information as soon as it becomes available. If you have any questions about instituting temporary lay-offs, recalling employees to work,  other COVID-19 related questions, or would like assistance with developing and/or reviewing pandemic plans, please do not hesitate to contact a Mathews Dinsdale lawyer, or refer to the Firm’s COVID-19 website resources.