To provide more flexibility to employers and employees wishing to extend a temporary layoff due to COVID-19, the government of British Columbia has amended the definition of temporary layoff in the Employment Standards Act to increase the maximum length of a temporary layoff to 16 weeks in a consecutive 20 weeks, rather than the usual 13 weeks. This change will also align the temporary layoff provisions with the 16-week benefit period provided under the federal Canada Emergency Response Benefit (CERB).

This amendment applies to employees who are laid off and do not have any recall rights either under an employment contract or a collective agreement.  It provides that if an employee who does not have any right of recall is temporarily laid off due, in full or in part, to the COVID-19 emergency, then the temporary layoff can last for up to 16 weeks in any consecutive 20-week period before that temporary layoff is deemed to be a termination under the Act.

The amendment does not apply to loggers working in the Interior who are laid off due to normal seasonal reduction in activity.

It is important to note that a temporary layoff is only available in certain circumstances pursuant to the Employment Standard Act and may still be considered a constructive dismissal under the common law if the employee and the employer do not agree to the temporary layoff.  If there is no mutual agreement regarding the layoff, the employer may be liable for pay in lieu of notice and/or severance pay both under the Act and the common law.  Accordingly, we recommend you seek legal advice before temporarily laying off any employees.  Also, please see our April 24, 2020 bulletin COVID-19 and Temporary Lay-off for further information about temporary layoffs, and the Ministry of Labour’s guidance: https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/forms-resources/igm/esr-part-7-section-45-01