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

FILE - In this April 19, 2021, file photo, Keidy Ventura, 17, receives her first dose of the Pfizer COVID-19 vaccine in West New York, N.J. States across the country are dramatically scaling back their COVID-19 vaccine orders as interest in the shots wanes, putting the goal of herd immunity further out of reach. (AP Photo/Seth Wenig, File)
5 more deaths, 131 new cases of COVID-19 in Interior Health over the weekend

Those 18-years and older in high-transmission neighbourhoods can register for the vaccine

Danny Fulton receives his first dose of the COVID-19 vaccine at the Coast Capri Hotel on April 27. The pop-up clinic was hosted by the First Nations Health Authority. (Aaron Hemens/Capital News)
All adults in Rutland, Summerland now eligible to receive COVID-19 vaccine

Province expands age range to 18+ for vaccinations in ‘high transmission’ areas

RCMP. (Phil McLachlan - Black Press Media)
Penticton RCMP search for 2 suspicious men

Police searching the area of Arawana Forest Service Road

Penticton Lions are hoping to send kids and adults with disabilities to Camp Winfield through a 50/50 raffle draw on now. (Submitted)
Penticton’s Lion’s Club helps to send kids to Camp Winfield

Online 50/50 raffle tickets will send kids and adults with disabilities to Camp Winfield

A bullet hole is seen in the windshield of an RCMP vehicle approximately 4 km from Vancouver International Airport after a one person was killed during a shooting outside the international departures terminal at the airport, in Richmond, B.C., Sunday, May 9, 2021. THE CANADIAN PRESS/Darryl Dyck
Homicide team IDs man in fatal YVR shooting as police grapple with spate of gang violence

Man, 20, charged in separate fatal shooting Burnaby over the weekend

The southern mountain caribou, an iconic species for the Splatsin First Nation, is threatened with extinction, much to the dismay of the First Nation. (Province of B.C. photo)
Okanagan First Nation band concerned over dwindling caribou herd

Southern mountain caribou at risk of extinction, much to dismay of Splatsin First Nation near Enderby

RCMP. (Phil McLachlan/Capital News)
UPDATE: Winfield road open following police, coroner investigation

Pelmewash Parkway closure near Highway 97 connection

Kelowna resident Sally Wallick helped rescue a kayaker in distress a week and a half ago. (Sally Wallick/Contributed)
VIDEO: Kelowna woman rescues capsized kayaker in Okanagan Lake

Sally Wallick is asking people to be prepared for the cold water and unpredictable winds

The B.C. legislature went from 85 seats to 87 before the 2017 election, causing a reorganization with curved rows and new desks squeezed in at the back. The next electoral boundary review could see another six seats added. (Black Press files)
B.C. election law could add six seats, remove rural protection

North, Kootenays could lose seats as cities gain more

The Independent Investigations Office of B.C. is investigating the shooting of an Indigenous woman in the Ucluelet First Nation community of Hitacu. (Black Press Media file photo)
B.C. First Nation wants ‘massive change’ after its 3rd police shooting in less than a year

Nuu-chah-nulth woman recovering from gunshot wounds in weekend incident near Ucluelet

RCMP (Phil McLachlan - Black Press Media)
High-risk takedown on Highway 1 following Shuswap shooting

Upon further investigation, the vehicle and its occupants were not associated with the shooting

Nurse Gurinder Rai, left, administers the Moderna COVID-19 vaccine to Maria Yule at a Fraser Health drive-thru vaccination site, in Coquitlam, B.C., on Wednesday, May 5, 2021. The site is open for vaccinations 11 hours per day to those who have pre-booked an appointment. THE CANADIAN PRESS/Darryl Dyck
COVID vaccine bookings to open for adults 40+, or 18+ in hotspots, across B.C.

Only people who have registered will get their alert to book

Most Read