Many employees off work amid COVID-19 are wondering about their rights.

Employers who have curtailed operations are wondering what liabilities may be lurking if upon resuming normal operations they return some but not all employees to work.

When Can Employers Lay off Employees in B.C.?

I have previously written about the circumstances in which an employer is able to lay off an employee in B.C.

The circumstances in which a layoff is legally permissible in B.C. have not changed due to COVID-19.  The ability to lay off an employee must be either expressly or implicitly provided for in the employee’s employment agreement or in a collective agreement or agreed to by the employee. An industry wide practice of commonly laying off employees, which is known to the employee upon hiring, may implicitly permit an employer to lay off the employee.

If the employment agreement does not allow the employer to layoff an employee temporarily, and the employee has not consented to it, a layoff may be a dismissal.

Also, a layoff may in some cases give rise to claims of constructive dismissal.

Is it a Temporary Layoff or Permanent Layoff (Dismissal)?

The next question is whether a particular employee’s layoff is temporary or permanent. A permanent layoff is a dismissal.

The Employment Standards Act (British Columbia) (ESA) provides that once an employee has been laid off for 13 weeks in any 20 week period, the layoff is no longer temporary. It automatically becomes permanent. 

Section 45.01 of the Employment Standards Regulation extends temporary layoffs to include a layoff of up to 24 weeks in any period, ending on or before August 30, 2020, of 28 consecutive weeks.

However, the 24 week extension only applies to non-unionized layoffs:

• for which the COVID-19 emergency is a cause of all or part of the layoff, and
• that began before June 1, 2020.

Layoffs that have nothing to do with covid-19 or that begin on or after June 1, 2020 continue to become permanent once the employee has been laid off for 13 weeks in any 20 week period.

March 17, 2020 to August 30, 2020 is 23.7 weeks.

Extending the temporary layoff period to a maximum of 24 weeks aligns with the Canada Emergency Response Benefit (CERB).

Termination Pay

Subject to certain exceptions, once a layoff ceases to be temporary, the employer must pay the employee compensation under the ESA for length of service. This amount varies from one to eight weeks pay. 

Subject to certain exceptions, when an employer terminates 50 or more employees at a single location within any two month period, the ESA requires written notice of group termination to be provided to all affected employees, or pay in lieu of such notice. This notice ranges from eight to sixteen weeks.

Exceptions

Those who might be entitled to termination pay must consider whether an exception applies.

Section 65(1)(d) of the ESA provides that individual and group termination pay is not required for an employee employed “under an employment contract that is impossible to perform due to an unforeseeable event or circumstance.”

Whether COVID-19 renders it “impossible” to perform the employment contract is assessed in individual cases. This exception does not apply if the contract was possible to perform another way, such as by working from home or with other adaptations.

Section 65(1)(f) of the ESA provides that individual and group termination pay is not required for an employee “who has been offered and has refused reasonable alternative employment by the employer.”

Employees who remain employed and who are recalled after a valid layoff related to COVID-19 should, when it is reasonable to do so, return to work.  Reasonableness is assessed in individual cases.

Variances to certain ESA requirements are also possible. Section 72 allows employers and employees to extend temporary layoffs by jointly applying for a variance.  Variances to the group termination provisions are also possible. A majority of affected employees may apply to cancel a variance. Variance decisions may also be challenged.

The Common Law

Some employees, particularly long serving ones, may have common law entitlements to reasonable notice, or pay in lieu of such notice, that far exceed the minimum requirements of the ESA.  

Without just cause for dismissal, failing to provide an employee with common law reasonable notice of dismissal or pay in lieu of such notice is a wrongful dismissal.

This is a slightly modified version of an article that appeared in the Kelowna Capital News and other online publications on or about July 26, 2020. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances.  We may be reached through our website at inspirelaw.ca.