The BC Employment Standards Act restricts the circumstances when an employer can lawfully proceed with temporary layoffs, and prior to the COVID-19 pandemic, only permitted eligible employers to temporarily lay-off employees for up to 13 weeks in a period of 20 consecutive weeks. In May the duration of temporary layoffs for reasons related to COVID-19 was extended to 16 weeks, and in June, it was extended to 24 weeks in any consecutive 28-week period. The “COVID-19 emergency layoff” period expires on August 30, 2020.
Although many businesses have been able to resume operations and recall some or all of their employees, employers in certain sectors including tourism and hospitality are still unable to operate at full capacity. Consequently, they remain unable to recall many of their employees from temporary layoff, and may remain uncertain when they will be able to do so. The August 30, 2020 deadline is approaching fast.
In response to this, the Ministry of Labour announced on July 20, 2020 that employers and workers can jointly apply to the Employment Standards Branch for a variance to extend the “COVID-19 emergency layoff” period beyond the August 30, 2020 expiry date. Employers that apply for a variance must have reasonable plans to recall employees by a specific date. Employers facing uncertainty determining a firm recall date for employees because of variables affecting BC’s Restart Plan and reopening of the economy should determine a date that most closely aligns with their reasonable business plans to partially or fully resume operations.
A variance allows the Employment Standards Branch to modify the application of parts of the Act to fit circumstances that do not meet the requirements of the Act but are still consistent with the intent of the Act.
To apply for a variance, employers follow what is essentially, a two-step process:
Step 1: Employers must provide proof that at least 50% of their employees who will be affected by the variance support the application. The BC government recommends that employers email affected employees with detailed information on how a temporary layoff related to COVID-19 impacts their employment. A sample email can be found on the BC government website. The sample email provides a link to an online tool created by the Employment Standards Branch to help document employee support. Employers then use an Excel list template which documents the affected employees’ name, contact information, and whether they support the application.
Step 2: Employers then complete the application form on the online portal and upload their employees’ responses securely from the tool to the branch.
The Employment Standards Branch then reviews the application. Employers will be notified once the variance is decided. To ensure applications are decided by the August 30th deadline, employers must submit their variance application by August 25th, and earlier if possible for quick processing.
Employers should remember that the Director of Employment Standards “may conduct an investigation to ensure compliance with the Act and the regulations, at any time, and whether or not the director has received a complaint”. An employer and its employees may be contacted during the variance application process by a representative of the Director of Employment Standards.
For more information, follow the link: https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/hours/variances/employer-covid-19-temporary-layoff-variance
Also, please see our previous bulletins: