On March 23, 2020, the Employment Standards Amendment Act (No. 2), 2020 received Royal Assent. Here are the highlights of the amendments now in force:
Unpaid leave for personal illness or injury
- S. 49.19 is added to the Employment Standards (the “ESA”) to provide for unpaid leave of up to 3 days in each employment year for personal illness or injury to any employee after 90 consecutive days of employment with an employer. The employer may request the employee to provide “reasonably sufficient proof” that the employee is entitled to leave under this section. This means, the employer may be able to request the employee provide a medical note justifying leave for illness or injury.
Unpaid leave related to COVID-19
- S.52.12 is added to the ESA and it allows an employee to request an unpaid leave related to COVID-19 where:
- the employee has been diagnosed with COVID-19 and is acting in accordance with instructions or an order 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 made 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, due to the employer’s concern about the employee’s exposure to others, has directed the employee not to work;
- the employee is providing care to an eligible person (e.g. a child, an ill or disabled person, the employee’s parents, or other eligible persons the government may later prescribe);
- the employee is caring for a child or eligible person because of the closure of a school or daycare or similar facility;
- the employee is outside the province and cannot return to British Columbia because of travel or border restrictions;
- a prescribed situation exists relating to the employee (this allows for the government to add other qualifying circumstances)
- The unpaid leave under S.52.12 may carry on for as long as a circumstance giving rise to the unpaid leave above applies to the employee.
- The employer may request, and the employee must, as soon as practicable, provide the employer with “reasonably sufficient proof” that the circumstances the employee is relying upon to obtain leave under section 52.12 applies to the employee. However, the employer is not allowed to request and the employee is not required to provide, a note from a medical practitioner, nurse practitioner or registered nurse.
- Employees who were discharged from their employment on or after January 27, 2020, but before section 52.12 came into force, due to a circumstance described in the said section applying to the employee, must be offered re-employment by their employer in the same or a comparable position and, if the employee is re-employed, the employee’s absence from employment following the termination is deemed to be an unpaid leave under section 52.12. The obligation to re-employ terminated employees does not apply in certain very limited circumstances described in section 52.12(1)(c) and (2) (f).
Layoff period in the Employment Standards Act extended for COVID-19 related reasons
On May 4, 2020, by way of Order in Council No. 219, the government of British Columbia, amended the Employment Standards Regulation, B.C. Reg 365/95, to extend the temporary layoff period to 16 weeks.
More particularly, before the amendment, under the Employment Standards Act (“ESA”), a temporary layoff longer than 13 weeks in any 20-week period was considered a permanent layoff or a termination of an employee’s employment requiring the employer to provide the employee with a written working notice of termination and/or severance pay based on the employee’s length of service. As a result of the amendment, temporary layoffs relating to the COVID-19 pandemic can be extended to 16 weeks in a 20-week period, provided of course the employee consents to a layoff or the employee’s written contract of employment provides a layoff provision.
The extension of layoff to a 16-week period is to align BC’s temporary layoff provision with the federal Canada Emergency Response Benefit (“CERB”) period and allow employees to keep their jobs, even if they are not working, for 16 weeks of temporary layoff
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