COVID-19

BC Government Introduces Streamlined Variance Application Process Related to COVID-19

As expected, the British Columbia Government has again refused to further extend the temporary layoff period in the province beyond 24 weeks or August 30, 2020, whichever comes first.

Instead, today the British Columbia Ministry of Labour announced a new program designed to expedite the variance application process for employers seeking to extend COVID-19 related layoffs as they struggle to remain in business in the face of the ongoing pandemic.

This announcement comes after the Province introduced regulatory amendments on June 25, 2020, to allow temporary layoffs to continue for up to 24 weeks, or until August 30th, whichever comes first. In connection with that initiative, the government indicated that the only avenue for any further extension to layoff periods would be through the variance process under section 72 of the Employment Standards Act

The Employment Standards Branch has now launched what it calls a streamlined variance application process, whereby employers will be able to make a joint application, with sufficient employee support, under section 72 of the Act to extend temporary layoffs beyond August 30, 2020.

The Branch has devoted additional resources to review and process variance applications, which are to be submitted online. Additional information and guidance is now available on the Branch website – here – to help employers navigate through the application process.

Variance applications are to follow a multi-step process that includes:

  • a survey template designed by the Branch for employers to confirm that more than 50% of affected employees support the application; and
  • an online application form and a tool to upload employees’ survey responses.

While the Branch has stated “more than 50%” of employees must support the application, on its website they go further and state the applications with greater than 50% are strongly encouraged.

The application portal can be found here. Applications may also be submitted by email, but the processing time is expected to take longer for applications in this format.

The joint nature of the variance application is expected to pose challenges for employers, as employees may be unwilling to participate in the survey or to support an employer’s application to extend ongoing layoffs.

Further, employers are expected to have “reasonable plans” to recall employees by a specific date in order to qualify for the variance. That said, the Branch has acknowledged employers may face uncertainty in determining a firm recall date, and has recommended that employers applying for a variance determine a date that “most closely aligns with their reasonable business plans” to resume operations.

The Director of Employment Standards retains authority to grant a variance for a shorter duration than that requested in the application, and will only grant an extension of the temporary layoff period beyond December 31, 2020, in exceptional circumstances.

The Branch is promising speedy decision-making and indicating that applications should be submitted early – no later than August 25, 2020 – in order to avoid layoffs being deemed permanent terminations, which could potentially require employers to provide termination pay under the Act as at August 30th.

For assistance with the variance application process, returning employees to work, 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.

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