Exclusions During COVID-19 Emergency - Regulation Part 7, Section 45.01
This section explains how the time period of a temporary layoff for reasons related to the COVID-19 emergency may be extended from 13 weeks to a maximum of 24 weeks, ending on or before August 30, 2020.
45.01 (1) In this section, “COVID-19 emergency” means the emergency that is the subject of:
(a) the notice provided on March 17, 2020 by the provincial health officer under section 52 (2) of the Public Health Act, and
(b) the declaration of a state of emergency made on March 18, 2020, and any extension of that declaration, under section 9 of the Emergency Program Act.
(2) If an employee is laid off and does not have a right of recall and the COVID-19 emergency is a cause of all or part of the layoff, the definition of “temporary layoff” in section 1 of the Act does not apply in relation to the employee and that layoff and the conditions of employment for the employee are altered in relation to that layoff by substituting the following definition:
“temporary layoff” means a layoff of up to 24 weeks in any period, ending on or before August 30, 2020, of 28 consecutive weeks.
(3) Subsection (2) does not apply in relation to a layoff described in section 37.7 (7).
(4) Subsection (2) does not apply in relation to a layoff beginning on or after June 1, 2020.
The B.C. government declared a state of emergency on March 18, 2020. This declaration is referred to in this subsection.
In a provincial state of emergency, B.C.’s Provincial Health Officer has the authority to make orders as needed. The Provincial Health Officer has issued several orders, notices and guidance under the Public Health Act. One of them, the notice provided on March 17, 2020 is referred to in this subsection.
There are three preconditions to this subsection:
- The employee is laid off. See the definition of temporary layoff in section 1 for an explanation of when an employee can be laid off. A week of layoff is any week in which an employee earns less than 50% of their regular wage. (See section 62);
- The employee does not have a right of recall. The right of recall is a reference to employees covered by a collective agreement, so this section only covers employees who are not unionized; and
- The COVID-19 emergency is the cause of all or part of the layoff.
If the above preconditions apply to an employee who has been laid off, the maximum length of the layoff is 24 weeks, ending on or before August 30, 2020, in a period of 28 consecutive weeks, rather than the usual 13 weeks as set out in the definition of “temporary layoff” in the Act. The purpose is to provide flexibility to employers and employees to extend the period of layoff. This change aligns the layoff provisions of the Act with the 28-week benefit period set out in the federal Canada Emergency Response Benefit (CERB).
This subsection refers to loggers working in the Interior, who may be laid off for longer periods of time due to a normal seasonal reduction in activity.
For exceptions to the requirements set out in this section as a result of COVID-19, refer to section 65(1)(d).
This subsection requires that in order for the period of layoff to be extended to 24 weeks, the layoff must have commenced prior to June 1, 2020.
Employment Standards Tribunal Decisions
Salvas and Reiswig, BC EST # D115/11 confirmed on reconsideration RD013/12
Related sections of the Act or Regulation
- s.1. Definition “regular wage”
- s.1, Definition “right of recall”
- s.1, Definition of “temporary layoff”
- s.1, Definition “termination of employment”
- s.3, Scope of the Act
- s.62, Definition “week of layoff”
- s.63, Liability resulting from length of service
- s.65, Exceptions
- s.66, Director may determine employment has been terminated.
- s.67, Rules about notice
- s.72, Application for variance
- Collins v. Jim Pattison Industries Ltd. (c.o.b. Jim Pattison Automotive Group)  B.C.J. No. 1201; 7 B.C.L.R. (3d) 13
- Dawn Besse vs. Dr. A. S. Machner Inc., 2009 BCSC 1316