British Columbia’s Employment Standards Act (ESA) has been amended in response to concerns regarding covid-19. The amendments are now in effect. They include two new job protected unpaid leaves of absence:
- a covid-19 related leave; and
- an unpaid illness or injury leave.
BC’s Covid-19 Related Leave
An employee is entitled to take the covid-19 related leave if any of the following applies, in relation to covid-19:
- the employee has been diagnosed with COVID-19 and is acting in accordance with the instructions 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 orders of the provincial health officer, an order made under the Quarantine Act, guidelines of the BC Centre for Disease Control or the Public Health Agency of Canada
- the employer has directed the employee not to work due to the employer’s concern about the employee’s exposure to others
- the employee is caring for a child or person who is unable to withdraw from the employee’s care, including due to the closure of a school, daycare, or similar facility; or
- the employee is outside the province and cannot return to BC due to travel or border restrictions.
This leave is retroactively available from January 27, 2020. On and after that date, an employee is entitled to job protected leave for as long as at least one of the above conditions applies.
Though there are some ins and outs involved, as soon as these leaves end, the employer must generally place the employee in the same position he or she held before taking leave or in a comparable one.
An employer may request “reasonably sufficient proof” that at least one of the above situations applies to the employee. An employer is not permitted to require a note from a medical professional in relation to this leave.
British Columbians working in Alberta should know that Alberta’s changes are much narrower and do not extend the leave to travel or border restrictions.
BC’s Illness or Injury Leave
After 90 consecutive days of employment with an employer, an employee is now entitled to up to 3 days of unpaid leave in each employment year for personal illness or injury.
An employer may request “reasonably sufficient proof” that the employee is entitled to this leave. As soon as this leave ends, the employer must place the employee in the same position he or she held before taking leave or in a comparable one.
Additional considerations under BC law
As with other job protected leaves, where an employer is alleged to have violated the employee’s rights in relation to the above leaves of absence, the onus is on the employer to demonstrate that the leave was not the reason for terminating the employee or changing his or her conditions of employment without the employee's consent.
Provincially regulated employers who wish to “lay off” employees must be aware that layoffs are permitted in BC only if the employment agreement contains a clause permitting it. If no such clause exists, unless employees have otherwise agreed, an employee is entitled to notice of termination or pay in lieu of such notice in accordance with the ESA.
Even if the employment agreement or a collective agreement permits temporary layoffs, once an individual is laid off for more than 13 weeks in a consecutive 20 week period, the ESA deems the layoff to be a termination. This means termination pay is payable.
Common law obligations upon dismissal still apply.
The ESA also contains additional notice requirements when an employer is terminating more than 50 employees within 2 months at one location.
Depending on the terms of the employment agreement, or a collective agreement, employers may require employees to take vacation at times that suit the employer. Now is a good time for employees to use up accrued vacation such as in time banks, rather than being dismissed or laid off. Vacation may be taken in one week blocks.
This is a slightly modified version of an article that is appearing in the Kelowna Capital News and other publications on or about April 18, 2020. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. We may be reached through our website at inspirelaw.ca.