Labour and Employment Law Blog

On March 23, 2020, the British Columbia government passed two amendments to the B.C. Employment Standards Act, RSBC 1996, c. 113. There are now two new unpaid, job-protected leaves of absence for eligible B.C. employees: sick leave and COVID-19 related leave. Unfortunately, the changes do not provide much relief to B.C. employers. In particular, B.C.’s inflexible temporary layoff regime remains the same.

Sick Leave

British Columbia employees with 90 or more days of employment will be entitled to up to three days of unpaid leave each year for personal illness or injury. Employers can require an employee to provide proof that they are entitled to sick leave. Note that this is not COVID-19 specific sick leave, and it will remain in place after the COVID-19 pandemic has ended. In discussing this amendment in the legislature yesterday, MLA Mike Farnworth explained that it is intended to bring B.C. in line with other Canadian provinces which already provide employees with statutory unpaid sick leave.

COVID-19 Related Leave

As we wrote in our last blog post, other Canadian provinces have already amended their employment standards legislation to provide employees with job-protected unpaid leaves of absence due to illness and/or other issues associated with COVID-19. B.C. has now followed suit (you can view the amended legislation here).

Similar to the approach taken in Alberta, B.C. has introduced a leave that is COVID-19 specific, which may be repealed by regulation once the crisis has passed. In comparison, Ontario and Saskatchewan have passed more forward-looking legislation that provides employees with access to job-protected leaves during public health/infectious disease emergencies generally.

Eligibility Criteria

An employee will be entitled to unpaid leave in B.C. if, in relation to COVID-19, any of the following applies:

• the employee has been diagnosed with COVID-19 and is acting in accordance with

1. instructions or an order from a medical health officer, or
2. advice of a medical practitioner, nurse practitioner or registered nurse;

• the employee is in quarantine or self-isolation in accordance with

1. an order from the provincial health officer,
2. an order made under the Quarantine Act (Canada),
3. guidelines of the British Columbia Centre for Disease Control, or
4. 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, including 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; or
• any other prescribed situation exists relating to the employee.

^{“Eligible person” above means the employee’s child[1] or a dependent adult.[2]}

Duration of the Leave

Employees will be entitled to this leave for however long one or more of the circumstances described above applies. This is similar to the approach taken in Ontario and Saskatchewan. In comparison, the COVID-19 leave in Alberta is for 14 days (although subject to extension if recommended by the Alberta Chief Medical Officer).

Requesting Proof of Eligibility

Employers can request reasonably sufficient proof from the employee that they are eligible for COVID-19 related leave. However, they cannot ask the employee to provide a medical note. This is likely in response to B.C.’s provincial health officer, Dr. Bonnie Henry, asking employers to waive the requirement for a medical note at this time.

Implication for Benefits

Both sick leave and COVID-19 related leave are job-protected leaves. So while employers are not obligated to pay employees during sick leave or COVID-19 related leave, there are some implications for benefits (if the employee is provided with benefits). If an employee taking one of these leaves normally contributes to a benefits plan, they must be given the option of continuing normal contributions while on leave. If they elect to continue contributions, the employer must maintain continuous coverage under that plan. If the employee chooses not to contribute, the employer is not required to maintain coverage while the employee is on leave, but must reinstate coverage without any waiting period when the employee returns to work.

Effective Date

The leave is retroactive to January 27, 2020, which is the date of the first presumptive COVID-19 case in B.C. This means that employees who are already off work due to one of the eligible situations set out above, will be eligible to take this leave of absence.

No Changes to Temporary Layoff Regime

In light of the economic impact that COVID-19 is having on many businesses and the uncertainty about how long present restrictions will have to continue, many employers were hoping to see B.C. update its legislation to be in line with provinces such as Alberta and Ontario, both of which give employers the ability to extend the permitted period for a temporary layoff.[3] That did not happen and so the inflexible layoff regime in B.C. remains in place.

In B.C., in order for an employer to be able to temporarily layoff an employee, the right to layoff must be: (1) expressly addressed in a written employment contract; (2) implied by virtue of industry custom; or (3) voluntarily agreed to by the employee. Even where temporary layoffs are permitted, the current legislation only permits employers to lay off employees for a maximum of 13 weeks in a 20 week period. If that period is exceeded, then the employee’s employment is automatically deemed to have terminated on the first day of the layoff and the employee is entitled to termination pay.

B.C. Emergency Benefit

The B.C. government also announced its COVID-19 Action Plan yesterday. One of the elements of this plan is a new B.C. Emergency Benefit. According to the action plan, this will be a tax-free $1,000 payment to B.C. employees whose ability to work has been affected by COVID-19. The benefit will be a one-time payment for British Columbians who receive EI or the new federal Emergency Care Benefit or Emergency Support Benefit as a result of COVID-19 impacts (you can read about the federal benefits in the federal government’s COVID-19 Economic Response Plan).

Announcements that impact employers are being made on an almost daily basis across the country. If you have any questions about these new leaves of absence, or how to handle the impact of COVID-19 in your workplace, please contact any member of the Lawson Lundell Labour, Employment and Human Rights Group. 

NOTE: Due to the rapidly changing legal landscape with respect to COVID-19 and our government’s response to the pandemic, please understand that any blog posts written in the past may not reflect the current applicable obligations, rights and benefits of employers and employees.

^{[1] “Child” means 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.}

^{[2] 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.}

^{[3] In Ontario, employers can extend the temporary layoff period to 35 weeks in a 52 week period if certain criteria are met (Employment Standards Act, 2000, s. 56(2)(b)). In Alberta, employers can similarly extend the temporary layoff period beyond 60 days if certain criteria are met (Employment Standards Code, s. 63(1)).}