COVID-19: HRLR Update May 13, 2020

PSEC Secretariat Letter on Service Continuity

The PSEC Secretariat’s direction to public sector employers in March was to maintain service and employment continuity until the end of April, enabled by the continuation of government funding. An updated direction was issued on April 27 to provide guiding principles to public sector employers on business continuity, moving forward during the pandemic. Specifically, employers are urged to consider service and staffing options in consultation with funders, in compliance with Provincial Health Officer and WorkSafeBC guidance, and with their unions. Discontinuance of programs and layoff of staff will continue to be the least preferable option in responding to the challenges of the pandemic, and only after discussion with the funder(s) as requirements will vary from program to program. Safe redeployment of qualified staff remains the recommended option for employers prior to proceeding with layoffs.

In the meantime, the Ministry of Children & Family Development and the Ministry of Social Development & Poverty Reduction (and CLBC) have issued recent statements to their contracted service providers that they are able to receive incremental funding to cover increased costs due to staff shortages, increased overtime, etc. for an extended period of time, now until May 31, 2020. The Ministry of Children & Family Development has more recently indicated that incremental funding will not continue past May 31. For reference on PSEC Secretariat's guiding principles, consult the April 27 letter, which can be found here.

BC Housing Emergency Funding Program for Safe Staffing

On April 30, BC Housing announced that an emergency fund would be made available for April and May 2020 to address current staffing pressures that are making it difficult to maintain service levels and meet increased service requirements in critical, frontline roles supporting vulnerable populations in the non-profit housing sector.

There are a number of CSSEA member agencies funded by BC Housing in the following program areas that are eligible for emergency funding:

• Shelters
• Supporting Homeless: Supportive Housing
• Homeless Outreach
• Transition Houses

CSSEA’s understanding is the emergency funding for these programs could provide assistance and support for one or more of the following options:

1. Covering overtime hours
2. Hiring temporary or auxiliary staff
3. Volunteer stipends or honoraria
4. Student recruitment
5. Covering a shift differential for extending hours of operation
6. Providing temporary adjustments to pay/wage differentials (capped at $5/hour) for staff earning less than $26/hour. Note that funding amounts do not cover costs associated with benefits.

Employers in need of pursuing options 1 to 4 should contact BC Housing to ensure that required criteria are met and discuss the options with their union.

As BC Housing noted in its announcement, some options require the renegotiation of the collective agreement provisions and as a result, CSSEA or HEABC (if it is a Health Sector Collective agreement) must be involved. Employers considering pursuing options 5 or 6 should contact their CSSEA Consultant/Advocate. Note that before implementing any wage amendments to the collective agreement CSSEA will have to coordinate with PSEC and the unions.

For more information on this initiative, please see BC Housing’s Safe Staffing Strategies for Non-Profits and Safe Staffing Strategies Questions and Answers.

Temporary Layoffs Under the Employment Standards Act

On May 4, 2020, the regulation to the Employment Standards Act was amended to extend the length of a "temporary layoff" during the COVID-19 emergency.

Under the Act, a temporary layoff can occur without need to give advance working notice or pay in lieu of notice to an employee, because the employee is not deemed terminated from employment. However, when a temporary layoff exceeds 13 weeks in a period of 20 consecutive weeks, the employee is then deemed to have been terminated, and the advance notice or pay in lieu requirements are triggered. Under Section 63(5) of the Act:

For the purpose of determining the termination date under this section, the employment of an employee who is laid off for more than a temporary layoff is deemed to have been terminated at the beginning of the layoff.

The May 4 amendment extends the 13 week period to 16 weeks in any period of 20 consecutive weeks where the COVID-19 emergency is a cause of all or part of the layoff, before the termination notice/pay provisions are triggered. The amendment aligns the COVID-19 temporary layoff period with the eligibility period for the Canada Emergency Response Benefit (CERB), which provides up to 16 weeks of financial support to eligible employees impacted by the pandemic.

Note that the COVID-19 emergency temporary layoff provisions are temporary and will be repealed following the pandemic.

Note also that these termination provisions under Section 63 of the Act do not apply to unionized employees covered by the sectoral collective agreements; the notice provisions under Article 13 would apply. Section 63 of the Act, including as temporarily amended, applies as the minimum requirements for non-union employees and should be read together with the terms and conditions of employment as set out in any employment contracts held with them. Unless the employment contract permits temporary layoff, or the employee agrees to the layoff, a temporary layoff may constitute a constructive dismissal and result in a claim of wrongful dismissal. Employers may be able to assert that a temporary layoff arising from COVID-19 circumstances is not a termination because it was caused by an unforeseeable event or circumstances beyond the employer’s control but the answer to this question has yet to be provided by the Courts in these specific circumstances.

Vacation Scheduling

CSSEA recommended to employers in March to withhold the approval of vacation requests while in the early stages of the pandemic, to give employers an opportunity to assess what the staffing impacts would be. As the impacts of the pandemic on staffing are now better known, employers should now be able to consider granting vacation requests based on current service needs and relief staffing availability.

Article 18 governs vacation entitlements and recently some employers have voiced the need for additional flexibility in addressing mounting vacation credits and liabilities due to recent challenges in being able to grant vacation requests. If this is the case with your agency, please reach out to your CSSEA contact to discuss options. CSSEA will work on developing a menu of options with the bargaining association to explore the flexibilities that may be available under Article 18 should they be needed.