When Does a COVID Layoff Become a Termination?


When Does a COVID Layoff Become a Termination?

"Layoff” is a commonly misunderstood term. A layoff occurs when an employee’s work is reduced by 50% or more of their previous hours but the employer expects to recall that employee in the future.

Prior to the COVID-19 pandemic, this procedure was often used only in seasonal or other cyclical industries, however, as the business community faced the impacts of COVID-19 and the provincial government broadened the applicable rules, it became more widely used. Now, as businesses have reopened only to face closures again, a refresher on the current rules is key.

A layoff can become a termination in one of two situations.

First, if an employer does not recall the employee within the time required under the Employment Standards Act, R.S.B.C. 1996 c. 113 (the “Act”), then they are required to pay the employee their termination pay in accordance with the Act. Prior to COVID-19, a layoff could not exceed 13 weeks in any 20-week period. Earlier in the pandemic, this period was extended (more than once) to ultimately permit up to 24 weeks of layoff in a 28-week period or a layoff until August 30, 2020, whichever was earlier. Employers who wished to extend a layoff beyond August 30, 2020, were required to apply for individual variances. The permitted layoff period has now returned to the 13 weeks in a 20-week period requirement despite ongoing
business closures.

Second, unless the layoff occurs in an industry where this tool is normally used, then the employee must agree to the layoff, either as a term of their employment contract or with the employer at the time the need for the layoff arises. Without either an agreement or an industry standard, the layoff may be invalid and become a termination.

Can an employer require you to be vaccinated? AND, is termination because you are not vaccinated a wrongful dismissal?

No one can force a person to be vaccinated but a person’s decision may have consequences. All employers, under WorksafeBC requirements, are obligated to keep their workplaces safe.

As the pandemic took hold, every employer was required to prepare and post a COVID-19 safety plan. Requiring all employees, or all employees who do not work from home, to be vaccinated is one tool some employers are using to help meet their obligation to keep workplaces safe. We do not have the benefit of case law on vaccination policies decided in a pandemic context.

Employers imposing vaccine requirements in union environments, prior to the pandemic, generally had to justify the policy by showing: it wasn’t arbitrary, punitive, or stigmatizing; it was proportional; and, it didn’t violate the Human Rights Code, R.S.B.C. 1996 c. 210 (the “Code”).

We do not yet know whether similar criteria would be applied in the context of COVID-19 and non-unionized workplaces. Except where the government has introduced a requirement that a certain employer or field of work is required to be vaccinated, an employee cannot be terminated for “cause” based on a decision to not receive the COVID-19 vaccine.

Employers can, however, terminate employees “without cause” at any time. This rule has always been subject to the obligation to comply with human rights obligations.

The BC Human Rights Tribunal has been clear — it does not deal with COVID-19 or vaccine complaints unless they relate to: a person with a disability (and the disability is connected to the complaint); a religious practice; or, a genuinely held religious belief.

Personal views are not protected by the Code. While requirements under the Code would continue to apply, many employers are now considering policies where all new employees must be vaccinated as a condition of any offer of employment.