Employment Law Issues (9:V): Difference between revisions
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The Employment Standards Interpretation Guidelines have been updated several times, in relation to the criteria the Branch will consider in the analysis of whether Covid-19 created an employment contract that was impossible to perform due to an unforeseeable event. See further information at: | The Employment Standards Interpretation Guidelines have been updated several times, in relation to the criteria the Branch will consider in the analysis of whether Covid-19 created an employment contract that was impossible to perform due to an unforeseeable event. See further information at: | ||
https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/forms-resources/igm/esa-part-8-section-65 | https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/forms-resources/igm/esa-part-8-section-65 | ||
=== 3. Covid-19 Temporary Layoffs and ESA Amendment 2020 === | |||
==== a) Layoffs ==== | |||
Under the Employment Standards Act, employers are only permitted to place employees on temporary layoff if there is a right to do so in the employment contract, layoffs are customary in the industry, or the employee consents. In normal circumstances, temporary layoffs can be for a maximum of 13 weeks, at which point if the employee is not recalled the layoff becomes a termination of employment, and triggers a severance obligation. | |||
An exclusion has been granted under the ESA for Covid-19 related temporary layoffs, extending the maximum layoff period from 13 to 24 weeks. The requirements remain that to put an employee on a temporary layoff there must be a right to do so in the employment contract, layoffs must be customary in the industry, or the employee must consent. Otherwise, the layoff can be considered a termination. | |||
==== b) Unforeseeable Event Considerations ==== | |||
Section 65 (d) states that termination pay does not apply if the employee is “employed under an employment contract that is impossible to perform due to an unforeseeable event or circumstance other than receivership, action under section 427 of the Bank Act (Canada) or a proceeding under an insolvency Act,” | |||
Employers may advance the argument that Covid-19 is an unforeseeable event which renders the employment contract impossible to perform and use that as an argument to avoid paying employees termination pay in lieu of notice. | |||
The Employment Standards Branch interpretation guidelines have suggested that this clause may apply in some circumstances, as follows: | |||
Covid-19 | |||
If a business closure or staffing reduction is directly related to CovidOVID-19 and there is no way for employees to perform work in a different way (for example, working from home) the exception may apply to exclude employees from receiving compensation for length of service and/or group termination pay. | |||
This exception is not automatic in all situations during the pandemic. If an employer terminates an employee for reasons that are not directly related to Covid-19 or if the employee's work could still be done (perhaps in a different way, such as working from home) the exception would not apply. Decisions on whether this exception applies are made by the Director on a case-by-case basis. | |||
However, the threshold for impossible to perform is very high (see BC EST # D105/08), and Employment Standards interpretation guidelines, while potentially indicative of results, are not binding precedent in an Employment Standards claim. | |||
As a result, students should review new Employment Standards decisions to see how this provision has actually been interpreted in relation to Covid-19. | |||
== Breach of contractual terms of employment == | == Breach of contractual terms of employment == | ||
