An update on the changes to COVID-19-related temporary layoffs
By Janna Young, James Jeffrey and Yang Guo (Student-at-Law)
Temporary layoff rules continue to change as a result of the COVID-19 pandemic. The law on layoffs is complex, varies between provinces and territories, and is governed by more than just statutory and regulatory law. This article outlines some of those changes to statutory and regulatory law affecting non-unionized workplaces and is current as of August 19, 2020. Further changes to the law will likely occur soon and, as such, we recommend consulting with legal counsel before implementing any layoff-related decisions.
BC has made temporary changes to its layoff rules. Under BC's statutory and regulatory laws, a temporary layoff that was caused at least in part by the COVID-19 pandemic can last up to 24 weeks in any 28-week period or until August 30, 2020, whichever period ends sooner.
Employers may apply for a variance of the layoff period if they meet certain preconditions. The BC Employment Standards Branch (the BCESB) has created a streamlined process for applications to vary the layoff period. The deadline for the streamlined process is August 25, 2020 to receive a decision by August 30, 2020.
The Director of the BCESB retains authority to set an expiry date and, after considering all the circumstances and the purposes of the relevant laws, may grant a variance for a shorter duration than requested in the application. While all applications are considered on a case-by-case basis, the Director will only exercise discretion to grant an extension past December 31, 2020 in "exceptional circumstances".
The application process is as follows:
1. Inform employees of intention to apply
a. The application is a joint application. Before applying, the employer must ensure that the majority of affected employees are aware of the application and agree to continue to be temporarily laid off from work.
b. 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.
2. Document employee support
a. Employers are responsible for documenting employee support. The employer must provide proof that it has more than 50% of affected employees in agreement.
b. The BCESB suggests emailing employees with detailed information on how a temporary layoff related to COVID-19 impacts their employment. The employer must clearly explain to the affected employees what a variance is and how the process works.
3. Submit online application
a. Applications must be received by August 25, 2020 to receive a decision by August 30, 2020.
b. The BCESB recommends uploading a list of all affected employees as part of the application.
c. The employer will receive an automatic email detailing its application immediately on submission. The BCESB recommends that the employer keep a copy for its records, as it may be contacted by a delegated authority of the Director of the BCESB to review the application in detail.
4. Receive notice from the BCESB
a. If the variance is granted, the employer will be emailed a copy of the variance decision; if the variance is denied, a formal decision is sent by email and registered mail to both the employer and affected employees.
b. The Director of the BCESB may conduct an investigation to ensure compliance with applicable BC statutory and regulatory laws, at any time, and whether or not the director has received a complaint.
5. Implement the change and inform employees
a. The conditions in the variance must be followed and a copy of the variance must be posted at the worksite. The BCESB also recommends sending a copy of the variance to the affected employees by email.
As of August 15, 2020, under Alberta's statutory and regulatory laws, a temporary layoff that is implemented "for reasons related to COVID-19" may last no longer than 180 consecutive days.
A temporary layoff that was implemented on or after March 17, 2020 and is not COVID-related may last no longer than 90 days within any 120-day period.
A temporary layoff can last longer if the employer meets certain preconditions. Employers may also apply for exemptions.
Saskatchewan is under a state of public emergency due to the COVID-19 pandemic and the provincial government has made temporary changes to its layoff rules. Under Saskatchewan's statutory and regulatory laws, during a state of public emergency and for a period of two weeks thereafter, employers are not required to provide advance notice of a layoff or pay in lieu, and can keep employees on layoff throughout the state of public emergency. After the expiry of the two-week period, the employer must schedule work for the laid-off employees. Employees who are not scheduled to work are deemed to have had their employment terminated and become entitled to termination pay. If any employees scheduled to work with the employer do not return to work, those employees are deemed to have resigned.
Manitoba is under a state of public emergency due to the COVID-19 pandemic and the provincial government has made temporary changes to its layoff rules. Under Manitoba's statutory and regulatory laws, any period of layoff starting after March 1, 2020 until the end of its state of emergency will not count towards the existing limit, which is eight weeks within a 16-week period. The change is not limited to COVID-related layoffs.
Ontario made temporary changes to its layoff rules that are retroactive to March 1, 2020 and will expire six weeks after its state of emergency ended. Ontario's state of emergency ended on July 24, 2020. The temporary changes to Ontario's layoff rules include the following:
- Any reduction or elimination of an employee's hours of work for reasons related to COVID-19 are converted to an indefinite leave.
- The normal requirement for continuation of employee benefits during a statutory leave is suspended for an employee whose layoff was converted to a leave.
- Employers are not required to begin contributing to employee benefits if they had not been doing so as of May 29, 2020 for employees on a layoff related to COVID-19.
- The requirement to provide an employee with notice of termination or severance pay where a temporary layoff exceeds the defined maximum is suspended.
- Until six weeks after the end of the state of emergency, the following, when related to COVID-19, does not constitute a constructive dismissal:
- a temporary reduction or elimination of an employee’s hours of work for reasons; and
- a temporary reduction in wages.