Laid-off Employees' Rights in the Time of COVID
By Izzy Dehler-Hyde
Seven months since the Government of BC ordered shutdowns of many industries and businesses to slow down the spread of COVID-19, laid-off workers are still facing uncertainty about their rights. The government extended the temporary lay-off provisions in the Employment Standards Act twice, to a total of 24-weeks. This provided employers with the flexibility to temporarily lay-off their employees until the end of August. This meant that employers did not have to terminate their employees and could avoid the possibility of paying compensation for length of service (often referred to as severance or termination pay) and employees could stay continuously employed without seeing any impact to their employment conditions (pay rate, vacation time, benefits, etc.). With August long gone and the temporary lay-off period over, many employees are still not back to work and are rightfully concerned and confused about their rights. We have compiled answers to some of the most common questions we have been hearing and we’re disheartened to say that you will find that the answers show the very few protections provided for employees whose jobs were lost due to COVID-19.
When I was laid off, I was told it was temporary, but my boss still hasn’t hired me back. What should I do?
While hard to hear, it is important to keep in mind that, in this situation, unless you have a collective agreement or an employment contract that guarantees the right to recall (the right to be called back into your employment position if it is within a pre-specified period), your employer has no legal obligation to hire you back.
With that in mind, it is still worth having a conversation with your employer about your job. If they still have intentions of hiring you back but are not in a position to do so yet, they could submit an application to the Employment Standards Branch for another extension to the temporary lay-off period. This process is called a variance. If they no longer have intentions of hiring you back, depending on your relationship with your employer, it may be worth negotiating with them a payment for compensation for length of service if you are eligible for it.
Am I entitled to compensation for length of service (also called severance or termination pay) for my COVID lay-off?
Possibly, but this is a rather tricky question to answer without all your specific details. There are some exceptions for termination pay unrelated to COVID-19. For example, if you worked for the company for less than three months; were hired on a short-term contract; worked on a construction site; turned down a reasonable offer to alternative work; or were fired for just cause, you are not entitled to compensation for length of service.
There is also a COVID-specific consideration as to whether you are entitled to termination pay for your layoff. Under section 65(d) of the Employment Standards Act, there is an exception to the requirement for termination pay if “an employment contract is impossible to perform due to an unforeseeable event or circumstance.” Your employer will likely try to argue that the COVID-19 pandemic and the resulting public health orders impacting businesses made it impossible to maintain your employment contract. In this case, your employer will have to demonstrate that it was impossible to keep you employed beyond a simple reduction in business. “Impossibility” is a high bar and business losses or reduced profits alone are not enough to waive an employer’s responsibility to provide termination pay to laid-off employees who are otherwise entitled to it. However, an impossible circumstance that the employer had no control over, for example, a public health order has shut down the business beyond the temporary layoff period, would likely absolve the employer of their requirement to pay termination pay. In any circumstance, it is worth getting legal advice to understand your options.
How much compensation for length of service could I be entitled to for my COVID lay-off?
An employer can choose to provide notice, compensation for length of service, or a combination or the two. As most employees did not receive notice of their COVID layoff, they could be entitled to termination pay. Termination pay is calculated based on how long you have worked for a company and what you typically made in a week in regular wages.
When is my deadline to file a complaint to the Employment Standards Branch for compensation for length of service for my COVID lay-off?
If you were initially temporarily laid off but then later not called back to work, your deadline to file a complaint is February 28, 2021. If you were permanently laid off from the get-go, your deadline to file a complaint is 6 months from your last day of work. If you have missed your deadline for reasons related to the pandemic, the Branch does have the discretion to accept those complaints. You should explain in your complaint form why the pandemic (or related reasons) left you unable to file on time.
If you live in the Capital Regional District, have been laid off from your job, and want to know whether you could be entitled to compensation for length of service, please contact TAPS at 250-361-3521 or employment@tapsbc.ca. If you live outside the CRD area, you can contact the Employment Standards Branch at 1-833-236-3700.