Earlier this year, a bill was introduced in the B.C. Legislature that would, if passed, amend the provisions of the Employment Standards Act relating to domestic or sexual violence leaves of absence. Other changes to that statute relating to COVID-19 have since taken precedence and have been passed, but the proposed amendments regarding domestic or sexual violence leave have been publicly supported by all three parties holding seats in the Legislature and are expected to pass in the near future.
Domestic or sexual violence leave
Employment standards laws in most Canadian provinces provide for leaves of absence for employees who experience domestic or sexual violence. In B.C., the entitlement to such leave is found in the Employment Standards Act, which currently allows an employee who experiences domestic or sexual violence, or whose child experiences domestic or sexual violence, up to 10 days of unpaid leave that may be taken either continuously or in units of one or more days. The Employment Standards Act also entitles an employee to a further unpaid leave of up to 15 additional weeks that must be taken continuously unless the employer otherwise agrees. The leave is available to all employees regardless of the duration of employment and is not discretionary, meaning an employer is not entitled to refuse the taking of leave by an eligible employee.
Domestic or sexual violence includes actual or attempted physical abuse by an intimate partner or family member and actual or attempted sexual abuse by any person. It also includes psychological or emotional abuse by an intimate partner or family member, such as stalking, harassment or threats. Unreasonable restrictions of personal or financial autonomy – such as preventing someone from leaving the home, withholding money, food, or phone/internet access or needlessly keeping someone from sleeping sufficient hours – also constitute domestic violence. Minors who are exposed to the domestic or sexual abuse of a family member are also deemed to have experienced domestic or sexual violence themselves.
The proposed changes
The proposed amendments to the Employment Standards Act will see the current entitlement to 10 days of unpaid leave replaced with five days of paid leave and five days of unpaid leave. As is currently the case, these 10 total days may be taken consecutively or in units of one or more days.
The current provision for up to 15 additional weeks of unpaid leave to be taken consecutively unless otherwise agreed to by the employer will remain unchanged.
The rationale behind the leave and the proposed changes
Domestic or sexual violence leave is intended to provide victims with time off from work to attend to matters such as seeking medical attention, attending counselling, moving to a safer place or participating in legal proceedings against the abuser (among others) without fear of losing their employment. However, all of B.C.’s political parties have publicly acknowledged the economic difficulty that may be caused by missing even a day of pay, especially because domestic violence may also involve strict controls on the victim’s access to money. That inclusion of paid leave is intended to address that difficulty.
Evidence of entitlement to the leave
While the Employment Standards Act does not require an employer to obtain proof of an employee’s entitlement before granting the leave, if the employer requests evidence of entitlement, the employee must provide “reasonably sufficient proof” as soon as is reasonably practicable. Such proof may include text messages, emails, voicemails, photographs of injuries or property damage, a statement from a witness, or a verbal or written report from a counsellor or doctor, any of which could corroborate the existence of domestic or sexual violence.
The above list is not intended to be exhaustive, and it is recommended that employers be flexible as to what proof they accept. For example, requiring all of the above kinds of proof would likely not be seen as reasonable. Employers should also bear in mind that abuse is often hidden (abusers deliberately make it hard to prove, and victims often conceal it) and should therefore expect that the threshold for “reasonably sufficient proof” is likely relatively low.
Job protection and remedies
An employer cannot legally terminate the employment of an eligible employee who takes domestic or sexual violence leave. If an employee who has taken domestic violence leave believes his or her employer has retaliated for the taking of the leave (including by way of dismissal), a complaint may be made to the Employment Standards Branch. Such complaints may result in a broad array of remedies, including (among others) the payment of lost wages, the reinstatement of employment (with back pay), the payment of compensation for lost employment, the payment of costs incurred by the employee or the Branch in connection with the contravention or the investigation of it.
Unionized employees who believe their employment to have been affected by the taking of domestic or sexual violence leave can seek redress by following the grievance process under their collective agreement.
If you have questions about domestic or sexual violence leaves or need advice about a situation involving such a leave (or any other employment law issues), Hamilton Duncan is here to help. Contacting our lawyer, Kelsey, is an easy way for employers to get the information they need to understand their obligations and for employees to get the advice or legal representation employees need to ensure that their rights are protected.
If you are a victim of domestic or sexual violence, trained volunteers at the Fraser Health Crisis Line are available 24/7 at 1-800-784-2433. Many group benefit plans also include crisis services, and plan members are encouraged to check their benefits package for information about these resources as well.
And if your life or safety or the life or safety of someone else is in immediate danger, please call 911 immediately.