Have you been laid-off past the maximum temporary layoff period? Understand what options are available to you and how you and your employer can apply together for “variance” to extend temporary layoffs. On August 31st, the BC government published an update on its website stating that employers and employees are now able to apply to the Employment Standards Branch for a variance to extend a temporary layoff due to Covid-19.
Previous Temporary Layoff Extension
The BC government amended the Employment Standards Act (“ESA”) in May 2020 to allow for extended temporary layoffs. June 25, 2020 marks the last extension to temporary layoffs under the ESA. A maximum temporary layoff of 24 weeks, ending on or before 30 August 2020 was the final period in which employers could have temporarily laid-off employees. However, going forward, employers and employees can apply jointly to the Employment Standards Branch for a “variance” under Section 72 of the ESA.
What is a Variance?
“Variance” is the term used to refer to amendments to the terms of the employment relationships that are outlined in the ESA. Variances allow for work situations that do not strictly meet the requirements of the ESA but still follow the purposes of it to promote fair treatment of employees and employers, help employees balance work and family responsibilities. Respectively, in order for a variance to be granted, it must promote fair treatment and provide benefits to the majority of those affected.
If the Employment Standards Branch grants the variance, it will extend the temporary layoff with no interruptions to rate of pay, vacation accruals, years of service, benefits, and leave of absence.
Employers may also apply to vary the standards for the number of weeks covered by an averaging agreement, notice and termination pay requirements for group terminations, split shifts, daily hours of work, and more (for an exhaustive list click here).
Options available past the maximum temporary layoff period.
In BC, employees cannot be temporarily laid off for more than 13 weeks in any given 20-week period. If an employer is not ready to hire back its employees after the 13 week period, employees have two options, as outlined below.
1. Extend Temporary Layoffs
The first option is for employees and employers to apply together to the Employment Standards Brand to extend temporary layoffs beyond 13 weeks. However, the employer is expected to produce evidence that a minimum of 51% of affected employees is in support of the application. For instance, in a workplace of 40 employees, 21 people need to be in support of the continuation of the temporary layoff.
2. Terminate Employment Relationship
The second option available to an employer is the termination of the employment relationship. When the employer does not extend temporary layoff or bring the employee back to work after 13 weeks, the employment relationship will be considered terminated. In such a case, employees will be entitled to termination pay in lieu of notice with the date of termination being the first day of the layoff period.
For more information on layoffs and constructive dismissals, click on the links below:
- Employment Law 101: What you need to know if you’ve been fired or laid off
- Have I been constructively dismissed?
DISCLAIMER: The content of this article, and this website generally, is not intended as legal advice and cannot be relied upon as legal advice. To provide legal advice on your problem, a lawyer must first understand your specific situation.
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