There have been some important changes to the Employment Standards Act in the wake of the COVID-19 pandemic. These changes include an extension to the temporary layoff period, a new COVID-19 related leave, injury and illness leave, and further word on the threshold an employer must meet to be exempt from providing notice or pay in lieu upon termination of an employee whose job is no longer available due to COVID-19. These changes are relevant for many of the local employers faced with slowdowns and economic hardship arising from the current shutdowns.
For employers that conducted layoffs when the COVID-19 related shutdown started, the extension of the temporary layoff period from 13 to 16 weeks in a 20 week period means you may be able to avoid letting go of employees whose jobs are still not available. It is expected that this change is to be time limited and that it will be repealed when no longer needed.
Despite this change, non-unionized employers would do well to remember that, except for a few exceptions, they still require a contractual right to lay employees off. Where an employer lays an employee off without the contractual right to do so, there is risk that the employee will consider themselves constructively dismissed. Before laying off anyone on your team, we recommend contacting an employment lawyer to discuss your options.
Another change of note from last month is that a COVID-19 related leave has been introduced in British Columbia. This change creates an entitlement for employees to obtain a job-protected, unpaid leave. This leave is available to employees who are ill, quarantined, or who are caring for a child or dependent. Employees who are unable to return to work due to travel restrictions also qualify for COVID-19 related leave. Employees may also qualify for this leave where their employer has directed them not to work due to concern about exposure to others. While employers may be entitled to verification that the employee meets any of the above criteria, it is not open to an employer to require their employee to get a medical note.
While perhaps less directly a result of COVID-19, another development to note is that the Act has been amended to include up to three days unpaid but job-protected leave for employees who can’t work due to illness or injury.
While strictly speaking not a change to Employment Standards Act, a noteworthy update has been made to the guide available on the Government of B.C. website for the Act. This update provides clarity for those wondering whether they still owe termination pay to dismissed employees where that dismissal was due to a work shutdown caused by COVID-19. An important exception to the length of service and group termination pay obligations of employers under the Act is found in section 65(1)(d) which exempts employers from having to make such payments where an employee’s continued employment “is impossible to perform due to an unforeseeable event or circumstance…” This provision in many ways mirrors the common law principle of frustration. The guide sets a high threshold for the exemption to apply, requiring that the conclusion of employment be due to COVID-19 and noting that “if the employee’s work could still be done (perhaps in a different way, such as working from home) the exception would not apply.” This language means that the circumstances in which section 65(1)(d) works to protect an employer from liability for length of service and group termination pay will be limited.
Dan Draht has a civil litigation practice which includes property litigation, employment law, and other business or commercial disputes. His practice also includes personal injury litigation and other tort related disputes.