Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. Photo: Contributed

Kootnekoff: Temporary layoffs during COVID-19

Susan Kootnekoff is the founder of Inspire Law, her diverse legal career spans over 20 years

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.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Specialist advice from a qualified legal professional should be sought about your specific circumstances.

If you would like to reach us, we may be reached through our website, at www.inspirelaw.ca.

In case you missed it?

New workplace harassment and violence requirements

To report a typo, email:
newstips@kelownacapnews.com
.


@KelownaCapNews
newstips@kelownacapnews.com

Like us on Facebook and follow us on Twitter.

ColumnistCoronavirus

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Invasive mussel monitoring stations detect 10 boats

Boats were headed to Okanagan and Thompson regions

COVID-19 outbreak at Okanagan Correctional Centre, involves 3 staff

Three staff involved in possible exposure, health officials say

Roots and Blues festival to kick off virtually on Friday

Watch the festival on Black Press Media website platforms, for free

Morning Start: The first vending machines dispensed holy water

Your morning start for Thursday, August 13, 2020

Morning Start: Women can give birth after they die

Your morning start for Wednesday, Aug. 12, 2020

578 British Columbians currently infected with COVID-19

Seventy-eight new cases confirmed in past 24 hours

Man who drove into music festival crowd sentenced to 14 months in jail

Several people seriously hurt during event held near Princeton

Conservation seizes fawn illegally kept captive in Vancouver Island home

A Comox Valley resident charged and fined under the Wildlife Act

Vandals put Vernon public piano out of play

Downtown instrument destroyed, but public project is not over

Pandemic could be driving more parents to get on board with flu shot: study

University of B.C. study gauges willingness for parents to vaccinate children for influenza

Salmon Arm’s first Bitcoin ATM installed in mall

The kiosk will allow people to buy cryptocurrency or sell it for cash.

Summerland mayor asks for community conversation on racism

Incidents in July prompt calls for dialogue

Westside wildfire human caused

Blaze started as a house fire and spread to the bush

Summerland working to reopen recreation facilities

Arena and pool are opening, but ball season will not proceed

Most Read