Employment Law

Authors: J. Geoffrey Howard and James Hsu

On March 23, 2020, the B.C. government amended the Employment Standards Act to create a new statutory leave for absences due to COVID-19 risks and included in the amendments, with no fanfare, a broader 3 day sick leave for any injury or illness.  A day later, the Government introduced new benefits payable to workers whose earnings are impacted by Covid-19. This Employer Alert may be subject to updating as events, and the law, evolve

COVID-19 Related Leave

Employees will now also be entitled to unpaid job protected leave if in the following “Circumstances”:

  1. diagnosed with COVID-19 and acting on instructions of the medical health officer, their doctor or their nurse;
  2. in quarantine or self-isolation in accordance with an order of the provincial health officer or under the Quarantine Act (Canada), or under the guidelines of either the British Columbia Centre for Disease Control or Public Health Agency of Canada;
  3. directed by his/her employer to not work due to a concern about the employee’s exposure to others;
  4. providing care to an “eligible person” as the result of a COVID-19 related issue, including due to the closure of a school daycare or similar facility.  Eligible person is defined as: a child under the day-to-day care of that employee, an adult dependent on that employee to obtain the necessities of life and that employee’s parent or former guardian;
  5. the employee cannot return to British Columbia due to travel or border restrictions; or
  6. they meet conditions to be prescribed later by government. This is thought to be in anticipation of orders closing “non-essential” businesses. Employees of such businesses thrown out of work would then have a job protected leave and the right to get their job back when the restrictions end.

Unlike all other ESA leaves, this leave can last “as long as the applicable Circumstance continues”.  While an employer may ask for reasonably sufficient proof from the employee that they are entitled to the leave, employers are specifically prohibited from requested a doctor’s note from that employee as that proof, presumably to avoid bringing potentially infected workers into strained doctor’s offices.

Retroactive Reinstatement Obligations

Employers who terminated an employee between January 27, 2020 and March 23, 2020 (i.e. for two months prior to this legislation being passed), by reason of one of the Circumstances applying to that employee are retroactively required to:

  1. offer that employee re-employment in the same or comparable position, and
  2. if the employee is re-hired, treat the employee’s period of absence as continuous service.

If you are uncertain on whether this last scenario applies to you, please reach out for assistance.

3 Day Illness or Injury Leave

The amendment also brought in a new 3 day unpaid leave for any personal illness or injury for employees.  This leave is not specific to COVID-19 and to be eligible, employees must have been employed for 90 consecutive days.  If requested by their employer, employees must provide sufficient proof of entitlement to this leave.  Unlike for the COVID-19 leave, this proof can include a doctor’s note. This is the first time the ESA has offered job protected sick/injury leave. Note that the 3 days is a minimum and does not imply that employees off work sick or injured can be terminated if they remain off work beyond 3 days. In most cases, such employees will be considered “disabled” and entitled to much more generous and uncertain in scope “reasonable accommodation” through leave under the Human Rights Code.

New BC Emergency Benefit for Workers

Readers should also be aware that the BC Government has announced that it will be providing a BC Emergency Benefit for Workers, which will be a one-time tax free $1,000 payment to people who have lost income because of COVID-19.

To be eligible, you must be receiving federal benefits under Employment Insurance or under the recently announced federal Canada Emergency Response Benefit. This payment will be in addition to those federal benefits. Applications for this benefit will open in April, with the payments scheduled to be paid in May.

Conclusion

We will continue to keep you updated on key changes affecting the workplace during this time.

Our previous posts on the COVID-19 crisis can be found here:

For assistance or questions regarding implementing these measures, you can contact Geoff Howard at: ghoward@meplaw.ca; 604 891-1184 and/or James Hsu at: jhsu@meplaw.ca; 604-891-1158 for assistance.

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