Feeling a time crunch? BC Government extends ESA Temporary Layoff Period and makes Union Cards valid longer

By Kai Ying Chieh and Preston I.A.D. Parsons

Extension to BC ESA Temporary Layoff Period

In our first COVID-19 newsletter, we outlined the risks and obligations associated with temporary layoff of employees under both the BC Employment Standards Act, RSBC 1996, c 113 and at common law. In the past few weeks, many employers have chosen to impose temporary layoffs where appropriate in order to steer the business through these difficult economic times.

As of May 4, 2020, a significant amendment to the BC Employment Standards Regulation, BC Reg 365/95, was ordered by Order in Council that effectively extends the duration of COVID-19-related temporary layoffs under the BC Employment Standards Act. This is a change that benefits both employees and employers affected by layoffs due to the economic downturn caused by COVID-19.

The Act's definition of "temporary layoff" includes "a layoff of up to 13 weeks in any period of 20 consecutive weeks". In the context of the Act's provisions related to termination of employment and termination pay, a temporary layoff can only be imposed for up to 13 weeks in a 20 week period, at which point the employment is deemed to have terminated and the employee is entitled to statutory notice or pay in lieu of notice.

However, the Order in Council makes the following key change: if an employee is laid off and the current COVID-19 emergency is a cause of all or part of the layoff, a new definition of "temporary layoff" applies that allows the layoff to endure for 16 weeks in a 20 week period.

This change is specifically directed at COVID-related temporary layoffs and is expected to be repealed when no longer needed.

This change means that the Act's temporary layoff period now lines up with the federal Canada Emergency Response Benefit, which provides 16 weeks of benefits to employees who have been laid off due to COVID-19. Importantly, the amendment provides some security to employees for three additional weeks during layoffs. Employers who made the difficult choice to lay off their employees now have three additional weeks before the obligation to provide statutory termination pay to an employee takes effect.

For more information on temporary layoffs as the situation evolves, we encourage our clients to contact us with any questions and for specific advice where the situation requires.

Union Cards are now valid for longer

Through Order in Council 171-2020, the BC Government recently amended the Labour Relations Regulation, B.C. Reg. 7/93, to extend the validity of Union Membership Cards from 90 days to 6 months after they were signed, during an organizing drive.

While this change was made effective April 6, 2020, it is important to note that it was not done as a response to COVID-19. Rather, this change was already planned and delayed from implementation longer than expected.

Businesses unfamiliar with their obligations under the BC Labour Relations Code that are experiencing a union organizing drive are highly encouraged to call us to seek legal advice early in order to ensure that your organization is equipped to abide by the sometimes onerous legal obligations present during an organizing drive at your workplace.