Many businesses have been forced to close, or have suffered a significant drop in revenue due to the COVID-19 health crisis. This post addresses issues an employer should consider when thinking about laying off employees.
- Employees may be on a protected leave
On March 23, 2020, the BC government announced two changes to the Employment Standards Act (the “Act”).
The first change to the Act is a temporary provision to allow employees to take unpaid job-protected leave if they are unable to work because they:
1.) have been diagnosed with COVID-19;
2.) need to self-isolate;
3.) need to take care of dependents;
4.) cannot return to B.C. because of travel restrictions; or
5.) have been directed by an employer to take leave if the employer is concerned about the employee’s exposure to others.
The effect of these provisions is that an employer cannot terminate an employee who is unable to work due to the above circumstances. This change is retroactive to January 27, 2020. Employers who have terminated employees whom would otherwise meet the requirements above are required to offer those employees re-employment in the same or a comparable position, and the period of termination is deemed to be a leave.
An employer should not request a medical note from the employee in relation to this unpaid job-protected leave. However, there may be circumstances where it is reasonable for an employer could request from the employee some proof that the employee is unable to work because of a positive diagnosis, is in quarantine or self-isolation, providing care to a child or a dependent, or cannot return to B.C. because of travel restrictions.
The second change is a permanent change to the Act to provide employees who have worked for at least 90 days to 3 days of unpaid, job-protected leave each year if the worker cannot work due to illness or injury. If requested by the employers, the employees need to provide “reasonably sufficient proof” to satisfy their employer that they are ill or injured and entitled to unpaid job-protected leave.
2. The Temporary Layoff Provisions in the Act are only available to employers in limited circumstances
If the employee is not protected under the above noted job-protected leave, then an employer may only temporarily lay-off an employee for up to 13 weeks in a 20 week period under 3 circumstances:
- The employment contract provides for a temporary layoff;
- It is normal and expected in the industry; or
- The employee agrees to the temporary layoff.
An employer’s obligations with respect to notice, pay, and contribution to employee’s benefits or pension depend on the terms of the employment contract.
If the employer does not fall under one of the three circumstances above, or if the layoff exceeds 13 weeks, then the layoff is deemed to be a termination, which in turn triggers termination and severance obligations under the Act and/or at common law. Employers are urged to seek legal advice to understand these obligations.
3. There are government programs available to help employers retain employees and avoid job losses
The government has put in place a variety of measures, including subsidies and refunds, to help employers avoid layoffs during this unprecedented time. For a summary of the government measures, please see our blog post on COVID 19 and the workplace: 4 government programs to help employers keep employees.
For more information about these significant changes to the Act or to see how we can help you navigate the complex employment-related issues arising from COVID-19, please contact Jordanna Cytrynbaum.
For more information on the amendments, please see: https://news.gov.bc.ca/releases/2020LBR0012-000551