As we previously reported, the BC Employment Standards Branch has released an online portal to process temporary layoff variance applications. In this update, we provide further information about the variance application process.
Temporary layoff and variance applications
Currently, temporary layoffs due to COVID-19 must end after 24 weeks, or by August 30, 2020 (whichever is first) under the British Columbia Employment Standards Act. Without a variance of this August 30, 2020 expiry of the COVID-19 emergency layoff period, a temporary layoff will convert into a termination and may trigger obligations to pay compensation for length of service.
The deadline to file a temporary layoff variance application is August 25, 2020, in order to ensure a decision can be made by the August 30, 2020 expiry date.
The variance application process is comprised of two steps:
- Employers must survey the employees affected by the variance application, providing them with information about their rights and the variance itself, to determine whether they have the requisite majority support for the variance; and
- If a majority of the employees affected by the variance are in support, the employer must then complete the variance application through the online portal or by emailing the Employment Standards Branch a pdf version of the application.
Step 1: Surveying affected employees
An employer is only required to survey those employees who are on temporary layoff, and who the employer expects to continue to be on temporary layoff as of August 30, 2020. There is no need to survey those employees who have been, or will be, returned to the workplace by August 30, 2020. If an employer is unsure if it will be able to recall its employees by that date, the safest course of action is to apply for the variance in the meantime to avoid the temporary layoff converting into a termination.
The Employment Standards Branch has prepared a template email that employers can utilize to inform their laid-off employees of their intention to apply for a variance. This template can be customized. The template email provides basic information about the variance process, the benefits of a variance, and the specific details of the employer’s intended variance application. This communication must clearly state the length of time for which the employer is seeking the variance, and this must match the information provided in the employer’s application to the Branch. If an employer elects to develop their own communication to employees about the variance, it is crucial that such communication remain neutral and not coerce the employee in any way to support the variance.
The Branch’s template email also directly connects the employee to an online form which collects the employee’s written support of the variance. The employee will then email that support form to the employer, and it will be included as supporting documentation with the employer’s variance application. Keep in mind that employees are not required to reply to an employer’s request for support, and employer’s should assume that the lack of a response means the employee does not support the variance.
Larger employers should expect the employee survey process to take approximately a week, and thus should plan to begin this step well before the August 25, 2020 submission deadline. Although only 51% support among affected employees is required to make an application, a higher percentage of support may increase the likelihood that an application is granted. Thus, it may be better for an employer to wait until more affected employees have had an opportunity to consider the variance, as opposed to applying the moment the employer has received support from a majority of the affected employees.
Variances on behalf of employee groups or specific employees
Employers have the option to bring variance applications on behalf of all affected employees, certain departments or employee classifications, or specific named employees. In circumstances where an employer does not have the requisite support across all employees on temporary layoff, it can bring a variance application on behalf of certain job categories, departments, or locations within which it does have majority support. Employers may also bring a variance application solely on behalf of specific employees who support the variance.
Where an employer is seeking a variance across multiple groups of employees, separate applications must be submitted.
Length of the variance
Employers should request the length of variance that meets their business needs, understanding that the Employment Standards Branch may approve a variance application for a shorter period than was requested by the employer. Depending upon an employer’s circumstances, a variance request up to December 31, 2020 is likely to be found reasonable. Employers that require a longer period of time should request it, understanding that requests extending beyond this date will only be granted in extraordinary circumstances.
Step 2: Employer variance application
The online portal application process typically takes about 15 minutes to complete. In addition to general contact information, employers should be prepared to provide the following information as part of the application process:
- Confirmation that the variance will facilitate the preservation of the employer’s operations;
- Why the variance is required;
- The recall date communicated to employees;
- The number of affected employees, and the number who support the variance;
- What employees are affected by the application (all employees, certain job titles or departments, or specific named employees); and
- The business industry.
Employers must also upload all documentation confirming the employee support for the variance. Employers may optionally include a list of the all the affected employees, which the portal notes will speed up the application process. Employers currently going through insolvency or corporate restructuring proceedings should expect that their variance application will receive additional attention and follow up.
We encourage employers to review the variance application portal carefully, and to contact your Harris lawyer for more information if you require assistance.
Note to our Readers: Information regarding COVID-19 is rapidly evolving. We are working to bring you up-to-date articles as the legal issues develop and to keep our previous posts updated. Given that the legal issues related to COVID-19 are constantly changing, if you are looking for legal advice or are dealing with an issue in relation to COVID-19, please contact your Harris lawyer or a member of our COVID-19 response team: Sari Wiens, Ilan Burkes, Nicole Toye or Jessica Fairbairn.
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