BC-regulated employers, who have employees on temporary layoffs and do not anticipate recalling them before August 30, 2020, need to apply for a variance from the Director of Employment Standards as soon as possible, and at the latest, by August 25, 2020.
The normal timeframe for a temporary layoff under the BC Employment Standards Act (“ESA”) is 13 weeks in any consecutive period of 20 weeks. In response to the COVID-19 pandemic, the BC government extended that period, and permitted temporary layoffs based on the COVID-19 pandemic of up to 24 weeks (in all cases, with the employee’s agreement) and expiring no later than August 30, 2020. If an employer is not in a position to recall temporarily laid off employees to work before August 30, 2020, employers need to apply for a variance. Otherwise, the layoff will be considered permanent and the employer will be obligated to comply with the termination notice/pay obligations under the ESA and may also trigger contractual/common law termination obligations.
The government has streamlined the variance application process into an online form. Note that employers are required to specify an intended date for recall in the variance application. For employers facing uncertainty in resuming operations based on BC’s restart plan, the variance application suggests that employers identify a date that “most closely aligns with their reasonable business plans to partially or fully resume operations”.
The Director of Employment Standards encourages employers to apply for a variance as soon as possible, and no later than August 25, 2020, to ensure sufficient time to process applications before August 30, 2020.
If you have any questions about your workforce and considerations underlying temporary layoffs and the COVID-19 pandemic, please don’t hesitate to contact Ryley Mennie, Connor Levy or Lou Poskitt from our Workplace Law Group.