COVID-related amendments to the Employment Standards Act are now in force having received all three readings in the Legislature and Royal Assent late March 23, 2020.
Unpaid Leave of Absence for COVID-related Reasons
Employees now have a right to unpaid leave of absence in the following circumstances:
- the employee has been diagnosed with COVID-19 and is acting in accordance with
- instructions or an order of a medical health officer, or
- advice of a medical practitioner, nurse practitioner or registered nurse;
- the employee is in quarantine or self-isolation in accordance with
- an order of the provincial health officer,
- an order made under the Quarantine Act (Canada),
- guidelines of the British Columbia Centre for Disease Control, or
- guidelines of the Public Health Agency of Canada;
- the employer, due to the employer’s concern about the employee’s exposure to others, has directed the employee not to work;
- the employee is providing care to an “eligible person”, including because of the closure of a school or daycare or similar facility;
- An “eligible person” includes:
- a child who is under 19 years of age and under the day-to-day care and control of the employee, when the employee is the parent or guardian of that child, or responsible for day to day care of the child under an agreement or court order
- a child of the employee who is 19 years or older who remains dependent and under the day-to-day care and control of the employee due to illness, disability or other reasons
- An “eligible person” includes:
- the employee is outside the province and cannot return to British Columbia because of travel or border restrictions;
Additional bases for a right to unpaid leave of absence may be also be added in the future by Regulation.
Duration of the Leave
When one of the above circumstances applies, the employee is entitled to leave for as long as that situation applies to the employee.
Proof of Entitlement to Leave
If the employer requests some proof that the employee is entitled to unpaid leave the employee must provide reasonably sufficient proof as soon as practicable. However, an employer must not request and the employee is not required to provide a note from a medical practitioner, nurse practitioner or registered nurse for this purpose.
Retroactivity
The new provisions are in effect retroactive to January 27, 2020. Employees may retroactively request leave if one of the circumstances set out above began on or after January 27, 2020.
If an employee’s employment was terminated on or after January 27, 2020 but before the new amendments came into force, due to a circumstance described in the new amendments, the employer must offer the employee re-employment in the same or a comparable position and, if the employee is re-employed, the employee’s absence from employment following the termination is deemed to be an unpaid leave of absence.
New General Unpaid Leave Entitlement for Illness or Injury
In addition to the COVID provisions above, the amendments also provide that employees with 90 consecutive days of employment are entitled to up to 3 days of unpaid leave of absence due to personal illness or injury within each employment year. If requested, the employee must, as soon as practicable provide reasonably sufficient proof that the employee is entitled to the leave.
Rules Applicable to New Unpaid Leaves under the Amendments
Employers should also be aware that these unpaid leave provisions fall within Part 6 of the Employment Standards Act and are subject to the same rules as other unpaid leaves in Part 6, including maternity and parental leaves. Sections 54 and 56 provide:
Duties of employer
54. (1) An employer must give an employee who requests leave under this Part the leave to which the employee is entitled.
(2) An employer must not, because of an employee’s pregnancy or a leave allowed by this Part,
(a) terminate employment, or
(b) change a condition of employment without the employee’s written consent.
(3) As soon as the leave ends, the employer must place the employee
(a) in the position the employee held before taking leave under this Part, or
(b) in a comparable position.
(4) If the employer’s operations are suspended or discontinued when the leave ends, the employer must, subject to the seniority provisions in a collective agreement, comply with subsection (3) as soon as operations are resumed.
(5) Subsection (4) is not to be construed as conferring a preferential right of recall on an employee referred to in subsection (3), to whom a collective agreement does not apply, beyond that to which the employee would otherwise be entitled.
Employment deemed continuous while employee on leave or jury duty
56. (1) The services of an employee who is on leave under this Part or is attending court as a juror are deemed to be continuous for the purposes of
(a) calculating annual vacation entitlement and entitlement under sections 63 and 64 [termination and group termination], and
(b) any pension, medical or other plan beneficial to the employee.
(2) In the following circumstances, the employer must continue to make payments to a pension, medical or other plan beneficial to an employee as though the employee were not on leave or attending court as a juror:
(a) if the employer pays the total cost of the plan;
(b) if both the employer and the employee pay the cost of the plan and the employee chooses to continue to pay his or her share of the cost.
(3) The employee is entitled to all increases in wages and benefits the employee would have been entitled to had the leave not been taken or the attendance as a juror not been required.
(4) Subsection (1) does not apply if the employee has, without the employer’s consent, taken a longer leave than is allowed under this Part.
(5) Subsection (2) does not apply to an employee on leave under section 52.2.
Note to our Readers: Information regarding COVID-19 is rapidly evolving. We are working to bring you up-to-date articles as the legal issues develop and to keep our previous posts updated. Given that the legal issues related to COVID-19 are constantly changing, if you are looking for legal advice or are dealing with an issue in relation to COVID-19, please contact your Harris lawyer or a member of our COVID-19 response team: Sari Wiens, Ilan Burkes, Nicole Toye or Jessica Fairbairn.
To read our most recent articles and other updates on COVID-19, visit our COVID-19 Updates page.
