March 24, 2020
By: Azadeh Taghizadeh, Daniel Sorensen and Lawrence Smith
What you need to know about the recent changes to the Employment Standards Act.
On March 23, 2020, the BC Legislature unanimously passed Bill 16, the Employment Standards Amendment Act (No. 2), 2020. Bill 16 adds two sections to the Employment Standards Act (the “ESA”), that is section 49.1 and 52.12, whereby employees are now entitled to unpaid leave due to illness or injury.
Section 49.1
I. Who is eligible?
If you have been employed at your job for 90 consecutive days, then under this section, you can take 3 days of unpaid leave each year for personal illness or injury.
II. What must be provided?
If you are asked by your employer to provide “reasonably sufficient proof” that you are entitled to leave under section 49.1, then you must provide this proof as soon as practicable.
III. When will this come into effect?
This section will be a permanent section added to the ESA so as to bring the province of British Columbia in line with all other provinces in Canada.
IV. Why is this change being made?
This section allows employees some job security for those who have an illness or injury to be able to have the opportunity to stay home and recover without the stress of going to work and possibly delaying their own recovery and/or passing an illness to their coworkers.
Section 52.12
I. Who is eligible?
Under section 52.12, an “eligible person” with respect to an employee, means:
(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 it is your child or you are the child’s guardian;
(b) a person who is 19 years of age or older and is unable because of illness, disability or another reason, to care for themselves and is under the day to day care and control of the employee.
The following employees are entitled to unpaid leave for as long as necessary, if it is in relation to COVID- 19:
52.12 (2) (a) the employee has been diagnosed with COVID-19 and is acting in accordance with
(i) instructions or an order of a medical health officer, or
(ii) advice of a medical practitioner, nurse practitioner or registered nurse;
(b) the employee is in quarantine or self-isolation in accordance with
(i) an order of the provincial health officer,
(ii) an order made under the Quarantine Act (Canada),
(iii) guidelines of the British Columbia Centre for Disease Control, or
(iv) guidelines of the Public Health Agency of Canada;
(c) the employer, due to the employer’s concern about the employee’s exposure to others, has directed the employee not to work;
(d) the employee is providing care to an eligible person, including because of the closure of a school or daycare or similar facility;
(e) the employee is outside the province and cannot return to British Columbia because of travel or border restrictions;
(f) a prescribed situation exists relating to the employee.
II. What must be provided?
If the employer requests from the employee for “reasonably sufficient proof” of the above circumstances, that is, support for your leave, then you must provide your employer with this proof as soon as practicable.
In saying that, the employer is not allowed to ask you for a note from a medical practitioner, such as your doctor, a nurse, or a registered nurse. This restriction has been applied so to prevent more strain on the health care system, as well as to prevent people from having to leave their homes to get a medical note and further increase the chances of the spread of COVID-19.
III. When will this come into effect?
This section has been made retroactive to January 27, 2020, that is, if you were affected by COVID-19 on or after January 27, 2020, this section applies to you.
If you were terminated on or after January 27, 2020 for one of the reasons stated above under section 52.12 (2)(a) through (e), the employer has to offer you re-employment in the same or comparable position and , if you are re-employed, your absence from work following your termination is considered to be leave under section 52.12.
Please note that section 52.12 may be temporary in order to address the current COVID-19 pandemic and it may be repealed by the Government.
IV. Why is this change being made?
Due to do recent outbreak of COVID-19, the BC government is providing job security to employees who are affected by COVID-19 so to allow unpaid leave for as long as necessary.
With these uncertain times, it is best to know your legal rights. If you have any questions or need legal advice, please contact us to set up a consultation.
SORENSEN SMITH LLP
Phone: 604-705-0022
E-mail: info@sorensensmith.com