Logic prevailed – on June 25, 2020, Premier John Horgan announced that the duration of temporary layoffs permissible under the British Columbia Employment Standard Act has been extended to a maximum of 24 weeks, expiring on August 30, 2020.
This change allows BC employers to extend temporary layoffs beyond the previous time limit without those layoffs being “deemed terminations” under the Act.
In May 2020, changes to the Act provided that temporary layoffs relating to the COVID-19 pandemic could be extended to 16 weeks in any 20 week period. The previous time limit was 13 weeks within a 20 week period.
Today’s announcement allows temporary layoffs due to the impact of COVID-19 to continue for up to 24 for weeks, or until August 30th, whichever comes first. While this is welcome news, the issue of the automatic “deemed terminations” of temporarily laid off employees will manifest itself again for employers after August 30th.
It is evident that the Province remains intent on directing employers seeking any further extension to layoff periods to use the variance process under section 72 of the Act. This onerous process involves employers and workers jointly submitting a variance application to the Employment Standards Branch for adjudication on a case-by-case basis.
This is problematic for a number of reasons. Even if an employer is able to secure employee cooperation for an application (no easy task particularly where employees are currently not attending work), the Branch guidelines indicate that the employer must have “definite plans to recall the employees by a specific date”, which is likely impossible in the current circumstances.
Further, there remains serious concern that Branch does not have the capacity to fairly and expeditiously review the number of applications they will inevitably receive.
Troublingly, the Province’s persistent emphasis on employers using the variance process suggests that no further legislatively-mandated extension may be coming after August 30th.
Employers should prepare themselves for the reality that, after August 30th, employees who remain on temporary layoff are likely to be deemed terminated, unless their employer has successfully applied for a variance to extend the permissible layoff period.
If you have any questions about this topic, require assistance with recalling employees or drafting a return to work policy, or any other questions relating to workplace law or COVID-19, please do not hesitate to contact a Mathews Dinsdale lawyer, or refer to the Firm’s COVID-19 website resources.