Amendments to the B.C. Employment Standards Act and the Provincial Response to COVID-19
March 24th, 2020
To: USW Local 2009 members
The emergency amendments to the B.C. Employment Standards Act have resulted in two new protected leaves of absences for employees: the COVID-19-Related Leave and the Illness or Injury Leave.
COVID-19-Related Leave
As promised by the B.C. Government late last week, the Legislature has now enacted an unpaid leave called COVID-19 Related Leave, which provides a right to an unpaid leave of absence for employees in the following circumstances (as well as circumstances that may later be “prescribed”, presumably by regulation or further amendment):
(a) the employee has been diagnosed with COVID19 and is acting in accordance with the instructions of a medical professional;
(b) the employee is in quarantine or self-isolation pursuant to a provincial order or the guidelines of the BC Centre for Disease Control or pursuant to a federal order or the guidelines of the Public Health Agency of Canada;
(c) the employee is providing care to a child or to a dependent adult;
(d) the employee is outside B.C. and cannot return to the province because of travel or
(e) they are directed not to report to work by their employer due to concerns about their exposure to others.
This last point is particularly significant, in that it indicates that employers now have the statutory right under the ESA to require employees to not report to work where there are concerns about exposure to others. While the right to require employees not to return to work where there are concerns about health and safety exists at common law and pursuant to the Workers Compensation Act, this is nonetheless a welcome development for employers, and should provide comfort for those who are in a position where they need to enforce employee leaves due to concerns about potential COVID-19 exposure
The duration of this leave is broad and open-ended: an employee is entitled to a leave for as long as they continue to satisfy the eligibility criteria. Also noteworthy is the fact that employers are not allowed to request medical documentation, but can otherwise request the employee to provide “reasonably sufficient proof” that an employee is eligible, and remains eligible, for the leave.
However, these amendments are also significant for what they do not provide. These amendments to the ESA do not provide a statutory right for employers to place their employees on a leave of absence where they have been ordered by government to shut down, or where they are temporarily economically unviable in light of the COVID-19 pandemic. What this means is that employers in such situations remain forced to consider the risks inherent with layoffs or forced imposition of leaves of absence. In short, notwithstanding these amendments, many significant challenges remain.
Very importantly, the leave is retroactive to January 27, 2020 and the Legislature has added specific language to address the circumstances of eligible employees who were terminated prior to the enactment of the leave. Employers are required to offer the terminated employee re-employment in the same or a comparable position. The employee’s absence from the workplace until re-employment is further deemed to be leave of absence.
Illness or Injury Leave
The B.C. Government has also amended the Employment Standards Act to provide three days of unpaid leave for an illness or an injury to an employee on an annual basis (i.e. unpaid sick days).
All employees are eligible after 90 consecutive days’ employment. However, an employer can request that an employee later provide “reasonably sufficient proof” of the illness or the injury necessitating the leave.
While the government did not provide advance notice that this leave would be established, we anticipate that this leave will be permanent.
Other Provincial Responses to COVID-19
The B.C. Government has also announced a $5 billion COVID-19 Action Plan to supplement the Federal Government’s multi-billion dollar package. This includes a new Emergency Benefit for Workers, which amounts to a tax-free $1,000 payment to British Columbians who receive any of the following federal benefits because of COVID-19: Employment Insurance Benefits, the new Emergency Care Benefit, or the new Emergency Support Benefit, as well as a right for businesses with a payroll of over $500,000 to defer payment of health tax premiums until September 30, 2020.
While we still await further details, the government has indicated that a significant portion of the plan will in particular be dedicated to assist hard-hit sectors of the economy, including tourism, hospitality, and culture sectors.
In solidarity,
The Officers of USW Local 2009
Al Bieksa: President
Georgi Bates: Vice President
Scott McRitchie: Financial Secretary
Mike Duhra: Treasurer