The British Columbia Employment Standards Branch (“B.C. ESB”) updated its “Employment Standards Act Interpretation Guide” to address COVID-19-related closures and the legislative requirement to provide notice of termination or pay in lieu of notice of termination.
The updates state that if a closure or reduction in hours of an employer’s business is directly related to COVID-19 and there is no way for the employee to perform work in a different way (i.e., working from home), an “impossible to perform” exception may apply. However, if COVID-19 is not the direct cause of the unforeseeable event or circumstances or the employee’s work can be done in a different way, the “impossible to perform” exception will not apply. Each situation must be addressed on a case-by-case basis and the application of this exception only relieves an employer from statutory notice requirements. Any common law notice an employee may be entitled to is not eliminated by this exception.
While this is a step forward in clarifying an employee’s notice entitlements when terminating employees during the global COVID-19 pandemic, it is by no means a complete answer to the issue. A careful review of the actual cause for the closure or reduced hours and resulting employee termination will be required prior to making a determination of whether notice of termination is required. Businesses that have closed as a result of government orders resulting from COVID-19, whose employees are unable to perform work in another manner, will likely meet the “impossible to perform” exception. Businesses that have been indirectly affected by COVID-19 which result in subsequent business failures will not necessarily fall within this exception. Each situation must be assessed on a case-by-case basis.
If you have any questions related to the potential application of this exemption or navigating any other employment concerns the MLT Aikins Labour and Employment team is here to assist.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.