Job Protection Measures – Recent Amendments to the British Columbia Employment Standards Act

As we learn more of the scale and scope of the COVID-19 pandemic we also see rapid changes to the legal landscape within Canada. These changes, many of which are intended to be responsive to the immediate needs of Canadians, have been introduced quickly and, for the most part, absent political manoeuvring. Ontario amended its employment standards legislation earlier in the month with the British Columbia Legislature following suit this week in order to implement further protections for employees, and to create circumstances of further certainty for employers, arising as a consequence of work absences occasioned as a direct result of COVID-19.

On March 23, 2020, Public Safety Minister Mike Farnworth presented amendments to the Employment Standards Act (the “Act”). Most significantly, these amendments provide a legislated job-protection, in the form of unpaid leave for absences related to COVID-19. The Act further provides some clarity regarding COVID-19-related rights of employees and corresponding obligations of employers, all of which are retroactive to January 27, 2020.

To summarize, an employee who is acting in accordance with the instructions of health professionals and / or an Order of the Provincial Health Officer or an Order made pursuant to the Quarantine Act (Canada), who requests leave, is entitled to unpaid leave if any of the following circumstances apply:

1. the employee has been diagnosed with COVID-19;
2. the employee is in quarantine or self-isolation;
3. the employer, due to the employer’s concern about the employee’s exposure to others, has directed the employee not to work;
4. the employee is providing care to an “eligible person”, including because of the closure of a school or daycare or similar facility;
5. the employee is outside the province and cannot return to British Columbia because of travel or border restrictions.

The definition for “eligible person” includes, but is not limited to, children as well as adults who are unable, due to illness, disability or another reason, to obtain the necessities of life and is under the day-to-day care and control of that employee.  The employee is entitled to an unpaid leave for as long as one of these circumstances continue to apply.

Employers are, however, permitted to request reasonably sufficient proof that confirming that such circumstances apply. Concomitantly, employees are obliged to provide proof, as requested, as soon as practicable. However, an employer must not request, and an employee is not required to provide, a note from a medical practitioner, nurse practitioner or registered nurse at this time.

Employees terminated on or after January 27, 2020 but before these amendments came into force,  due to a circumstance described above, must be offered reemployment into the same, or comparable, position and, on re-employment, the employee’s service is deemed continuous, and the period of absence is deemed to be a leave.

We note that the BC legislature has not made any changes to the length of temporary layoff but we expect that, should these circumstances continue, there may be further amendments to the Act. These amendments are purposive and critical to the global effort to slow the spread of COVID-19. Employers and employees will now feel more confident as they follow the directions of Provincial Health Officer, Dr. Bonnie Henry, without fear of losing their employees or their employment.