Employment Standards Branch Update on “Unforeseeable Events”

The BC Employment Standards Branch recently issued an update on section 65(1)(d) of the Employment Standards Act (the “ESA”)  in the context of the COVID-19 pandemic.

Section 65 sets out various exceptions to the termination notice requirements in section 63 and the group termination notice requirements in section 64 of the ESA.

Section 65(1)(d) provides for an exception to sections 63 and 64 if the employment contract is “impossible to perform due to an unforeseeable event”. The Employment Standards Branch recently amended its Guide to the Employment Standards Act & Regulation (the “Guide”) to note that business closures or staffing reductions due to the COVID-19 pandemic may amount to an unforeseeable event which makes an employment contract impossible to perform.

The Guide now states that in order for the exception to apply, the closure or staffing reduction must be directly related to COVID-19 and the employment contract must actually be impossible to perform. If the work could still be performed in a different way (e.g. from home), the exception would not apply.

The application of the exception must be considered on a case-by-case basis. Employers should seek legal advice before seeking to rely on the section 65(1)(d) exception.

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 BurkesNicole Toye or Jessica Fairbairn.

To read our most recent articles and other updates on COVID-19, visit our COVID-19 Updates page.