Written by: Sara Hanson
BC employees are now entitled to unpaid leaves of absence for COVID-19 related reasons, after amendments to BC’s Employment Standards Act introduce job protection for employees who require time off due to COVID-19 and unpaid illness or injury leave for all employees.
This afternoon, during a brief sitting with only 12 MLAs, the BC Legislature unanimously passed Bill 16, the Employment Standards Amendment Act (No. 2), 2020.
Bill 16 is significant on two fronts. First, Bill 16 protects the jobs of employees affected by COVID-19 by amending the Employment Standards Act (the “ESA”) to provide employees with unpaid leave for as long as necessary. Through the addition of section 52.12 to the ESA, employees are now entitled to leaves in the following circumstances:
(a) the employee has been diagnosed with COVID-19 and is acting in accordance with
(i) instructions or an order of a medical health officer, or
(ii) advice of a medical practitioner, nurse practitioner or registered nurse;
(b) the employee is in quarantine or self-isolation in accordance with
(i) an order of the provincial health officer,
(ii) an order made under the Quarantine Act (Canada),
(iii) guidelines of the British Columbia Centre for Disease Control, or
(iv) guidelines of the Public Health Agency of Canada;
(c) the employer, due to the employer's concern about the employee's exposure to others, has directed the employee not to work;
(d) the employee is providing care to an eligible person[1], including because of the closure of a school or daycare or similar facility;
(e) the employee is outside the province and cannot return to British Columbia because of travel or border restrictions;
(f) a prescribed situation exists relating to the employee.
(emphasis added)
While employers are entitled to ask employees for “reasonably sufficient proof” that one of the circumstances above applies, the amendments explicitly prohibit an employer from asking the employee for a note from a medical practitioner, nurse practitioner, or registered nurse. This is intended to limit unnecessary demands on our health care system, and to prevent employees from unnecessarily leaving their homes to acquire medical proof of illness when they should be under self-isolation or quarantine.
The amendments protecting employees’ jobs for COVID-19 related reasons are retroactive to January 27, 2020. This means that if you were terminated on or after January 27, 2020 for one of the reasons set out above, but before the amendments to the ESA, your employer is required to offer you “re-employment in the same or a comparable position,” and your previous absence from work will be deemed to be a leave under the amended ESA.
These amendments are designed specifically to address the urgent needs created by the COVID-19 pandemic, and may be repealed by the Government.
Second, Bill 16 also amends the ESA to provide all employees who have worked 90 consecutive days of employment with unpaid illness or injury leave of up to 3 days each year. This welcome change is a permanent addition to the ESA, which brings BC in line with many other provinces by ensuring all employees are guaranteed a minimum number of days off each year to recover from illness or injury, without fear of risking their jobs. This amendment will help ensure that employees who are ill with communicable illnesses do not feel forced to work, thereby putting their co-workers at risk and hampering their own abilities to recover.
If requested by an employer, employees taking unpaid illness or injury leave must provide the employer with “reasonably sufficient proof” that they are entitled to illness or injury leave.
This blog is not legal advice, and is intended for general information purposes only. If you need advice about your specific situation, you should speak to a lawyer or the Employment Standards Branch.. The lawyers at Moore Edgar Lyster LLP can be reached here.
[1] an “eligible person” includes your own child, a child under your care or control by way of an agreement or court order, or a person over the age of 19 who is unable to care for themselves and is under your day-to-day care and control