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BC Government introduces new leave of absence protection under Employment Standards Act

The BC government has proposed changes to introduce new leave of absence protection under Employment Standards Act.

leave of absence protection under Employment Standards ActMany BC employers are aware that the federal government changed the rules regarding pregnancy/maternity and parental leave employment insurance benefits last year. As of December 3, 2017, eligible employees have the ability to opt for 12 or 18 months of combined pregnancy and parental leave benefits under federal legislation. However, unless a province has enacted legislation to protect employees’ jobs under applicable employment standards legislation, only federally-regulated employees are able to take full advantage of 18 months of combined pregnancy/parental benefits.

The BC government announced yesterday that it was making changes to the Employment Standards Act [ESA] to, among other things, provide BC-regulated, eligible employees with job protection for an 18 month period of pregnancy/parental leave. The ESA currently only provides job protection for a total of 52 weeks of pregnancy/parental leave.

The changes proposed by the BC government to the ESA also include:

  • permitting a pregnant employee to start maternity leave up to 13 weeks ahead of the predicted due date (currently it is 11 weeks);
  • a new, unpaid job-protected leave of up to 52 weeks for employees who experience a missing child due to crime;
  • a new, unpaid job-protected leave of up to 104 weeks for employees who experience the death of a child under 19 years of age for any reason; and
  • increasing the available time for compassionate care leave, from the current 8 weeks, to up to 27 weeks.

The changes introduced by the BC government eliminate the conflict for provincially-regulated employees between the availability of 18 months of employment insurance benefits and only 12 months of job protection, and introduce new, unpaid job-protected leaves of absence that are found in other Canadian jurisdictions, though Ontario is currently the only other Canadian province that provides a job-protected leave for employees who experience the death of a child for any reason (i.e. not limited to death resulting from a crime).

Assuming the proposed amendments to the ESA are approved by the legislature, BC employers will need to review their current policies regarding leaves of absence to ensure compliance with the new requirements, particularly as the changes to pregnancy/parental leave job protection are intended to apply to employees who have already commenced such a leave.

By Christopher McHardy

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Employer Advisor, McCarthy Tétrault LLP

Employment and labour lawyers at McCarthy Tétrault LLP
McCarthy Tétrault through their Employer Advisor blogs offers their perspectives on the latest legal developments applicable to the workplace. It provides their insights on legislative and regulatory developments, as well as new case law, while providing practical tips for employers and their human resources professionals when managing the workforce. McCarthy Tétrault is a Canadian law firm that delivers integrated business law, litigation services, tax law, real property law, labour and employment law nationally and globally. Several of their blog posts will be republished with permission on First Reference Talks. Read more
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