Labour and Employment Law Blog

As discussed in prior blog posts, the Employment Standards Regulation was previously amended to extend the temporary layoff period due to COVID-19 to a maximum of 24 weeks in a period of 28 consecutive weeks provided the layoff started before June 1, 2020 and ended by August 30, 2020. Employers wishing to extend the temporary layoff period beyond 24 weeks must apply for a variance.

Employers with reasonable plans to recall employees by a specific date that falls after August 30^th may apply for a variance to extend the temporary layoff period pursuant to section 72 of the Employment Standards Act. Variances are granted at the discretion of the Director of Employment Standards (the “Director”) on a case by case basis. Variance applications require:

• A specific recall date not exceeding December 31, 2020. However, if there are exceptional circumstances, the Director may grant an extension of the temporary layoff period past December 31, 2020; and
• Consent of the majority of employees affected by the variance. This requires written agreement from the employees impacted.

Without a variance, if an employee on a temporary layoff is not recalled prior to the 24 week cutoff, the employment of the employee will be deemed terminated. Unless a statutory exception applies, the employee will then be entitled statutory pay in lieu of notice of termination pursuant to the Employment Standards Act (which may include both individual and group notice, depending on the circumstances) and, depending on the language in their employment agreements, common law reasonable notice.

Variances are only applicable to non-unionized employees.

Applications for a variance must be submitted to the Employment Standards Branch prior to August 25, 2020 in order to ensure processing prior to August 30, 2020. Employers can apply online to Employment Standards through this link.