On May 4, 2020, the Employment Standards Regulation, B.C. Reg. 396/95 was amended to extend the length of a temporary layoff during the COVID-19 emergency.
Prior to this amendment, a temporary layoff was limited to 13 weeks in a period of 20 consecutive weeks. As a result of this amendment, the temporary layoff period may now extend for up to 16 weeks in any period of 20 consecutive weeks where the COVID-19 emergency is a cause of all or part of the layoff.
With this amendment, employees may remain on temporary layoff for up to 16 weeks without triggering a termination of employment under the Employment Standards Act. The amendment also aligns the COVID-19 temporary layoff period with the eligibility period for the Canada Emergency Response Benefit (CERB) which provides up to 16 weeks of financial support to eligible employees impacted by the COVID-19 pandemic.
The COVID-19 emergency temporary layoff provisions are temporary and will be repealed once they are no longer necessary.
Although the Employment Standards Act permits temporary layoffs, an employer must also consider the employee’s rights under contract and the common law. Unless the employment contract permits temporary layoff, layoffs are common in the industry, or the employee agrees to the layoff, a temporary layoff may constitute a constructive dismissal and result in a claim of wrongful dismissal. That said, employers may be able to argue that a temporary layoff arising from COVID-19 circumstances is not a termination because it was caused by an unforeseeable event or circumstances beyond the employer’s control. Employers are strongly advised to obtain legal advice before laying off non-union employees. It should also be noted that layoffs of unionized employees will be governed by the terms of their collective agreement.
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.
To read our most recent articles and other updates on COVID-19, visit our COVID-19 Updates page.