On May 4, 2020, the BC government extended the maximum duration of temporary layoffs related to COVID-19, following other provinces’ lead. The BC government also announced details of its Restart Plan, with other provinces doing the same. Finally, in a busy week for employers, the Federal Government announced it will be extending the Canada Emergency Wage Subsidy. This Employer Alert may be subject to updating as events, and the law, evolve
Extension to COVID-19 Related Temporary Layoffs
In B.C., the maximum duration an employer may layoff an employee has been increased from 13 to 16 weeks in a period of 20 consecutive weeks subject to the following criteria;
1) The employee does not have a right of recall, meaning this extension will be not available to most union employees who typically have recall rights in their collective agreements; and
2) COVID-19 is the cause of all or part of the overall layoffs at the employer.
After the 16 weeks, the lay-off is deemed permanent under the ESA and statutory termination amounts become payable.
The following is a chart of other similar amendments allowing for extended temporary lay-off in other provinces to date:
COVID related extension of maximum duration of temporary layoff
Alberta: To 120 consecutive days
Saskatchewan: To 12 weeks in a 16 week period
Manitoba: Layoffs occurring in the period after March 1, 2020 and ending on the day which the state of declaration of emergency concerning COVID ends, will not be credited against the maximum temporary layoff duration, being: 8 weeks in a 16 week period.
Note that these ESA rules do not necessarily mean employers have the legal right to impose temporary lay-offs without triggering a constructive dismissal and employers need advice before imposing temporary lay-offs or materially extending them.
BC’s Restart Plan and other provinces
On May 6, 2020, BC unveiled its “Restart Plan” which lays out a series of steps for coming back from the impacts of COVID-19, including around return to work. In short, some sectors (e.g. restaurants, hair salons) will be subject to detailed work safety requirements while other employers must have a plan for returning to work which takes into account COVID-19 safety guidelines from WorkSafe BC. WorkSafe inspectors can ask to see the plan, for example if an employee complains about unsafe conditions.
Employers should review and comply with:
Applicable Orders, Notices and Guidance from the Provincial Health Officer, many of which are industry specific;
The BC COVID-19 Go-Forward Management Checklist (the “Checklist”), and
Occupational Health and Safety Guidance and Requirements set by WorkSafeBC.
Similar rules are slowly emerging in other provinces. While the full scope of the BC “Restart Rules” is too complex to summarize here, employers must have clear policies to prohibit individuals who have the symptoms of a cold, flu or COVID-19 from coming into the work place and are encouraged (but not required) to implement sick policies for the next year that allow for ill employees to work at home if possible or be paid more than EI sick pay if they cannot.
Readers may recall our previous advice that under human rights legislation, an employee who has or even who is perceived at risk of having corona virus will be considered “disabled” and thus entitled to “reasonable accommodation” to the point of “undue hardship”. Since then, BC’s Office of the Human Rights Commissioner, which advocates and informs on human rights issues, has taken the position that COVID-19 or being suspected of having it is a form of “disability” triggering the duty to both avoid discrimination and to offer “reasonable accommodation”. This may affect employers’ obligations around returning to work including considering continued work from home requests.
Extension of the CEWS
The many thousands of employers who have applied for wage subsidy under the Canada Emergency Wage Subsidy (“CEWS”) will be relieved to hear the Federal Government has announced that CEWS will be extended beyond the third claim period running from May 10 to June 6, 2020. At time of writing, the exact length of the extension has not been announced but given the key role CEWS has in the government’s plan to restart the economy, we anticipate an extension for at least 2 more periods of 4 weeks, with possible further extensions to follow.
For assistance or questions regarding implementing these measures, including compliance with health and safety obligations and government orders and directions, contact Geoff Howard at firstname.lastname@example.org, 604.424.9686.