B.C. amends Employment Standards Act to protect workers during COVID-19 pandemic

B.C. amends Employment Standards Act to protect workers during COVID-19 pandemic 

On 23 March 2020, the B.C. Legislature made two significant changes to the Employment Standards Act in direct response to COVID-19’s impact on the workplace.  The first is a temporary measure enacted to provide unpaid, job-protected leave to employees affected by COVID-19 that is retroactive to 27 January 2020.   The second is a permanent change that provides eligible workers with up to three days of unpaid leave for personal illness or injury. 

The entire amendment can be found here. 

COVID-19 Related Leave 

The Covid-19 Related Leave ensures employees will not lose their jobs for prioritizing their health, and the health of others in their community, during this crisis. 

The legislative amendment states that an employee can take unpaid, job-protected leave if they are unable to work for any of the following reasons related to COVID-19: 

• the employee has been diagnosed with COVID-19 and is following the instructions or advice of a medical professional; 
• the employee is in quarantine or self-isolation and acting in accordance with relevant government orders; 
• the employee is directed by their employer not to work because of concerns of their exposure to others; 
• the employee needs to provide care to their eligible dependents, including because schools or daycares have shut down;  
• the employee is outside B.C. and unable to return to work due to travel or border restrictions; or 
• any other situations that may later be prescribed by regulation. 

In administering leave, an employer can request “reasonably sufficient proof” that an employee is affected by a circumstance that requires them to take leave; however, an employer cannot require an employee to provide a medical note as proof. While the legislation is unclear on what “reasonably sufficient proof” otherwise entails, common sense should prevail.  For example, notes from a daycare facility or documentation relating to cancelled travel may suffice. 

The COVID-19 Related Leave is retroactive to 27 January 2020, the date of the first presumptive case in B.C.  Consequently, employers must offer re-employment to any employees that have been terminated for COVID-19 Related Leave circumstances on or after 27 January 2020.

The COVID-19 Related Leave will be repealed when the health emergency has resolved. In this regard, B.C. has diverged from other provinces (like Ontario and Saskatchewan) that have amended their legislation more broadly to address all public health emergencies, not just COVID-19. 

Illness or Injury Leave 

The government permanently amended the Employment Standards Act so that employees can take up to three days of unpaid, job-protected leave if they are ill or injured. This change aligns our employment legislation with other provinces. 

To qualify for this leave, employees must be employed for 90 consecutive days. Employees must provide reasonably sufficient proof of entitlement, as soon as practicable, after an employer requests proof for this leave. 

Minister of Labour Harry Bains explained the need for this change: “This crisis has highlighted the importance of having permanent job-protected illness or injury leave in place for people in this province.”