Amendments to British Columbia’s
Employment Standards Act
Greg Palm, Partner
Hamilton Duncan, Surrey, British Columbia
On March 23, 2020, the British Columbia government amended the Employment Standards Act. Most of the changes are in specific response to the ongoing COVID-19 pandemic and are expected to be temporary. Another change, however, creates a new type of leave of absence that is intended to be permanent.
COVID-19 LEAVES OF ABSENCE
The most notable change to the Employment Standards Act in light of current events is the inclusion of provisions for unpaid, job-protected leaves of absence relating to COVID-19. These provisions expressly provide for their repeal at any time, indicating that they will be eliminated when the pandemic has ended.
It is important to note that the COVID-19 leave of absence provisions apply retroactively to January 27, 2020. If an employer terminated an employee’s employment on or after that date as the result of a circumstance that would have entitled the employee to a COVID-19 leave of absence, the employer must offer the employee the same or comparable employment, and the intervening period is deemed to be a COVID-19 leave of absence.
Eligibility for Leave
Eligibility for a COVID-19 leave of absence exists for employees who:
- have been diagnosed with COVID-19 and are acting in accordance with the instructions of a medical health officer, the advice of a doctor, nurse practitioner or registered nurse;
- are in quarantine or self-isolation in accordance with an order of B.C.’s Provincial Health Officer, an order under the federal Quarantine Act, or guidelines of the B.C. Centre for Disease Control or the Public Health Agency of Canada;
- have been directed by their employer not to work due to the employer’s concern about the employee’s exposure to others;
- are outside B.C. and cannot return due to travel or border restrictions; or
- are providing care to their children or other “eligible persons”, for instance because of school or daycare closures resulting from COVID-19.
The amendments provide that regulations may be made later to expand the list of circumstances that would entitle employees to a COVID-19 leave of absence and/or to expand the definition of “eligible persons”.
Duration of Leave
An employee’s entitlement to a COVID-19 leave of absence continues for so long as any of the circumstances mentioned above apply to the employee.
Evidence of Entitlement to Leave
If the employer requests it, the employee must provide to the employer reasonably sufficient proof of the employee’s entitlement to a COVID-19 leave of absence. The employee must do so as soon as is practicable.
The employer may not, however, insist that such proof be a note from a doctor, nurse practitioner or registered nurse (presumably because of the impact that such requests would have on a health care system that is expected to be heavily burdened).
ILLNESS OR INJURY LEAVES OF ABSENCE
The amendments to the Employment Standards Act also provide for a new type of unpaid leave that is not directly related to COVID-19.
In particular, all employees with more than 90 consecutive days of employment are now entitled to up to three days of unpaid leave due to personal illness or injury.
This new leave is for each employment year. There is no provision for the carry-over of unused leave into subsequent employment years.
As with the COVID-19 leave, if the employer requests it, an employee must, as soon as is practicable, provide reasonably sufficient proof of the employee’s entitlement to the leave. Unlike the COVID-19 leave, however, there is no prohibition on the employer requesting a that such proof be a note from a doctor, nurse practitioner or registered nurse.
There is no provision for the eventual repeal of these amendments, leading to the expectation that this new type of leave will be a permanent fixture of our Employment Standards Act.
If you have any questions with respect to these amendments or any other employment law matters, we would be happy to hear from you.
The Author: Greg Palm is a partner at Hamilton Duncan and the leader of the firm’s commercial litigation practice group, which includes employment law matters for employers.
Notice: This article is for general information purposes only, and is not legal advice. Readers should not act based only on general information or neglect to seek legal advice because of it. Proper legal advice is highly dependent on the facts of each particular case, and the lawyers at Hamilton Duncan would be pleased to discuss your situation with you and to provide you with advice specific to it.