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

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

Pixabay.
Calling on Central Okanagan volunteers to apply for scholarship

The Central Okanagan Foundation is now accepting applications for its annual Volunteer Spirit Scholarships

Farmer Bob at the Farmers Market in Kelowna, B.C. (Contributed)
Kelowna farmers’ market manager wins BC Farmers’ Market Award

The awards were given out via a virtual conference in mid-February

Kelowna Olympian Malindi Elmore has been honoured locally for her contributions to the sport of running. She is one of five Okanagan athletes who received an athletic excellence award from PacificSport Okanagan, this week. (Contributed/UBC Okanagan)
Kelowna athletes, coaches, businesses honoured for achievements during pandemic

Among them, Kelowna’s Malindi Elmore and Jacob Rubuliak named Community Sport Heroes

The City Park dock in Kelowna was underwater due to rising Okanagan Lake flooding in 2017. (OBWB photo)
Okanagan facing extreme flooding risk

Water board calls for updated Okanagan Lake level management

On June 23, 2020, Sunrise Rotary announced it will be donating $50,000 in support of the Bridge Youth and Family Services for the construction of the “Okanagan Youth Recovery House” project for young people under the age of 19 who are experiencing addiction. (Contributed)
Interior Health adds 10 youth substance-use treatment beds in Kelowna

The Bridge Youth and Family Services will operate the beds

Health Minister Adrian Dix looks on as Dr. Bonnie Henry pauses for a moment as she gives her daily media briefing regarding COVID-19 for British Columbia in Victoria, B.C, Monday, December 7, 2020. THE CANADIAN PRESS/Jonathan Hayward
7 additional deaths and 542 new COVID-19 cases in B.C.

Provincial health officials reported 8 new COVID-19 cases linked to variants of concern

A sample of guns seized at the Pacific Highway border crossing from the U.S. into B.C. in 2014. Guns smuggled from the U.S. are used in criminal activity, often associated with drug gangs. (Canada Border Service Agency)
B.C. moves to seize vehicles transporting illegal firearms

Bill bans sale of imitation or BB guns to young people

BC Housing minister David Eby is concerned that Penticton council’s decision to close a local homeless shelter will result in a “tent city” similar to this one in Everett, Wa. (Olivia Vanni / Black Press file)
‘Disappointed and baffled’ housing minister warns of tent city in Penticton

Penticton council’s decision to close a local homeless shelter could create tent city, says David Eby

A recently published study out of UBC has found a link between life satisfaction levels and overall health. (Pixabay)
Satisfied with life? It’s likely you’re healthier for it: UBC study

UBC psychologists have found those more satisfied with their life have a 26% reduced risk of dying

A vial of some of the first 500,000 of the two million AstraZeneca COVID-19 vaccine doses that Canada has secured through a deal with the Serum Institute of India in partnership with Verity Pharma at a facility in Milton, Ont., on Wednesday, March 3, 2021. THE CANADIAN PRESS/Carlos Osorio - POOL
Federal panel recommends 4-month gap between COVID vaccine doses due to limited supply

The recommendation applies to all COVID-19 vaccines currently approved in Canada

A vial of Oxford-AstraZeneca COVID-19 vaccine is pictured at a family doctor office, Thursday, Feb. 25, 2021 in Paris. THE CANADIAN PRESS/AP -Christophe Ena
Trudeau ‘optimistic’ that timeline for rollout of COVID vaccines can be accelerated

Canada set to receive more than 6M COVID-19 vaccine dose than initially expected, by end of March

The restart of the program means seniors can receive affordable meals delivered five days a week Photo by Scott Suchman for The Washington Post.
Princeton Meals on Wheels one year trial will cost $92k

Program restarts, and volunteer drivers are needed

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

Beginning late Tuesday, anti-pipeline protesters blocked the intersection of Hastings Street and Clark Drive in Vancouver. (Instagram/Braidedwarriors)
Demonstrators block key access to Vancouver port over jail for pipeline protester

They group is protesting a 90-day jail sentence handed to a fellow anti-pipeline protester

Most Read