On June 25, 2020, the province introduced regulatory amendments 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.
Employers and workers who need to extend temporary layoffs due to COVID-19 can apply for a variance using the Employment Standards Branch’s new online application.
There are 5 steps involved in the joint application process.
- Before applying, employers must make sure the majority of affected employees are aware of the application and agree to continue to be temporarily laid-off from work. More than 50% of affected employees must approve the decision to apply for a variance. If a majority decision is not reached, an employer cannot proceed with the application.
- Employers must provide documentary proof that more than 50% of affected employees approve the decision to apply for a variance. The Employment Standards Branch has designed a survey template to assist employers in this regard.
- Employers submit their online application through the Employment Standards Branch website.
- Employers will receive a notice from the Employment Standards Branch with respect to their variance application. If the variance is granted, employers will be emailed a copy of the variance decision. If the variance is denied, a formal decision is sent by registered mail to both the employer and affected employees
- If the variance is granted, the conditions in the variance must be followed and a copy of the variance must be posted at the worksite.
Both employers and employees may benefit from an extension to a temporary layoff. Employers may benefit by not having to terminate employees and provide termination pay. Employees may benefit by remaining continuously employed with no interruption to rate of pay, vacation accrual, and years of service.
However, making the majority of affected employees aware of the application and having them agree to continue to be temporarily laid-off from work will pose challenges for some employers. Employees may be unlikely to complete the survey and may not agree to continue to be laid-off beyond August 30, 2020.
In addition, employers are expected to have reasonable plans to recall employees by a specific date that falls after August 30, 2020. The Employment Standards Branch does acknowledge that employers are facing uncertainty and determining a firm recall date for employees because of variables affecting BC’s Restart Plan may be difficult.
Applications should be submitted by no later than August 25, 2020 to receive a decision by August 30, 2020 to avoid layoffs being deemed terminations and potentially requiring the payment of termination pay.
Should you have any questions or require legal support, please contact any one of the Pushor Mitchell Employment team.