On March 23, 2020, the B.C. Government introduced and passed Bill 16 – 2020: Employment Standards Amendment Act (No. 2), 2020, which amends the Employment Standards Act ("ESA") to include unpaid leave for personal illness or injury and COVID-19-related illness. Regarding the latest amendments to the ESA, the Minister of Public Safety and Solicitor General, Mike Farnworth, stated that "these proactive changes ensure that no one will lose their jobs for prioritizing their health and safety, or the health and safety of their loved ones and their community."
Illness or Injury Leave
Employees are now eligible to take three days of unpaid, job-protected leave in each year of employment for reasons of a personal illness or injury. In order to qualify for the Illness or Injury Leave, an employee is required to have worked for an employer for 90 consecutive days, and, upon the employer's request, provide reasonably sufficient proof that the employee is entitled to the leave.
An employee who is unable to work for reasons relating to COVID-19 can take unpaid, job-protected leave if:
- the employee has been diagnosed with COVID-19 and is acting in accordance with the instructions or an order of a medical health officer, or on the advice of a medical practitioner, a nurse practitioner, or a registered nurse.
- If 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 B.C. Centre for Disease Control; or
- guidelines of the Public Health Agency of Canada.
- If the employer, due to concerns about the employee's exposure to others, has directed the employee not to work;
- If the employee is providing care to an eligible person as a result of a COVID-19-related issue, including caring for an eligible person due to the closure of a school, daycare or similar facility. The ESA defines "eligible person" as: (a) a child who is under the day-to-day care and control of the employee by way of agreement or court order or because the employee is the child's parent or guardian; or (b) a person who: (i) is 19 years of age or older, (ii) is unable, because of illness, disability, or another reason, to obtain the necessities of life or withdraw from the charge of the person's parent or former guardian, and (iii) is under the day-to-day care and control of the employee, who is the person's parent or former guardian;
- If the employee is outside of B.C. and cannot return because of travel or border restrictions.
The COVID-19-Related Leave is retroactive to January 27, 2020. As a result, an employer that has terminated an employee between January 27, 2020 and March 23, 2020 due to one of the COVID-19 circumstances described above must offer the employee either the same job or a comparable position. Upon the employee's reinstatement, his or her absence from employment following the termination will be deemed a leave of absence.
An employee is entitled to COVID-19-Related Leave for as long as one of the COVID-19 issues described above applies to the employee. The employer may request reasonably sufficient proof that the employee is entitled to one of the types of COVID-19-Related Leave. However, an employer must not request, and an employee is not required to provide, a note from a medical practitioner, nurse practitioner or registered nurse.
To learn more about workplace strategies for communicable illnesses and handling COVID-19 in your workplace, please contact a member of Gowling WLG's Employment, Labour & Equalities Group.