ESA Temporary Layoffs Becoming Less Temporary

As the COVID-19 pandemic marches on (to date, just over 9,000 deaths in Canada and over 172,000 in the United States), the legal system in B.C. continues to adapt.  Earlier on, the maximum length of a “temporary layoff” was extended from 13 weeks to 24 weeks, to allow employers to cope with the debilitating business impacts of the pandemic.

Now, as that 24-week layoff period is set to expire at the end of August, the Employment Standards Branch is allowing employers to apply to extend that maximum layoff period beyond 24 weeks.  The Branch has published detailed information on the opportunity to apply for this variance and has set a deadline of August 25^th for doing so.

If you seek the benefit of the extension, you must apply for it by August 25^th for it to be in effect after August 30^th.  If you do not apply, it will not be applicable to your business.

The Branch’s website contains all the information employers (and employees) need to apply for this variance.  Much of the following is taken directly from the website.

• Employers with reasonable plans to recall employees by a specific date that falls after August 30, 2020 can apply to extend the temporary layoff through a variance to the Act with the Employment Standards Branch (ESB).

• 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. 

• In exercising discretion to grant a variance, the Director of Employment Standards retains authority to set an expiry date and after considering all the circumstances and the purposes of the Act, 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 of Employment Standards will only exercise discretion to grant an extension of the temporary layoff period past December 31, 2020 in exceptional circumstances.

• [If the variation is granted], the employer does not have to terminate employees and does not have to provide termination pay.  The employee remains continuously employed, with no interruption to:
  • Rate of pay
  • Vacation accrual
  • Years of service
  • Benefits
  • Leaves of absence

• This is a joint application. Before applying, you must make sure that the majority of affected employees are aware of the application and agree to continue to be temporarily laid-off from work.  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. 

• Employers are responsible for documenting employee support. Employers must provide proof they have more than 50% of affected employees in agreement. [The Branch recommends] emailing employees with detailed information on how a temporary layoff related to COVID-19 impacts their employment. Clearly explain what a variance is and how the process works. 

Employers may submit an online application or may apply by email.Applications must be received by August 25, 2020 to receive a decision by August 30, 2020. 

All the information and tools needed to apply for this variation to the definition of “temporary layoff” is accessible from the Branch’s online home page.

To help the Branch review your submission faster, they recommend uploading a list of all affected employees as part of your application.  Employers will receive an automatic email detailing their application immediately on submission.  The Branch has noted that emailed applications for the variance will take longer to process.

If the variance is granted, employers 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.

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This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.