In light of the current crisis with COVID-19, the BC Legislature has introduced some changes to the Employment Standards Act, RSBC 1996, c 113. These changes came into force yesterday and may have significant impact for employees who need to or have taken time off due to COVID-19.
First, after 90 days of consecutive employment with one employer, an employee is entitled to three days of unpaid leave in each employment year for personal illness or injury. The legislation requires that if the employer requests, the employee must provide the employer proof that they are entitled to illness or injury leave.
Second, the legislation also has created a new leave, the “COVID-19-related leave”. An employee is entitled to unpaid leave under the section if:
- the employee has been diagnosed with COVID-19 and is acting on 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 an order of the provincial health officer, an order 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, out of concern regarding the employee’s exposure to others has told the employee not to work;
- the employee is providing care to an eligible person (e.g their child or a dependent over 19 for whom the employee is the former guardian or parent); or
- the employee is outside the province and cannot return to BC because of travel or border restrictions.
Under the new amendments, the employee is entitled to leave so long as the circumstances giving rise to the leave exist. The employee is required to give reasonably sufficient proof of this as soon as practicable. An employer may not request and an employee is not required to provide a note from a medical practitioner, nurse practitioner or registered nurse.
This unpaid leave could extend for several months. It also has retroactive effect to January 27, 2020. This means that an employee may request leave and is entitled to leave if on March 23, the employee was employed by an employer, and the prescribed circumstance(s) applied to the employee after January 27th.
If an employer terminated an employee on or after January 27, 2020 but before March 23, due to a circumstance entitling an employee to COVID-19-related leave the employer must offer the employee re-employment in the same or a comparable position once the leave is over. This is similar to other protected unpaid leaves in the ESA; like maternity leave.
Employers cannot terminate employment because an employee takes this leave. However, employers can still terminate employment for unrelated reasons but will have the onus to prove this.
This updated was authored by Deanna Froese. Want more information about this new development and other helpful tips in for managing the Coronavirus pandemic? Contact Deanna at firstname.lastname@example.org or anyone else listed on our authors page.