On March 23, 2020, the Employment Standards Amendment Act (No. 2), 2020 came into force. It amends the Employment Standards Act (“ESA”) in response to the COVID-19 pandemic.
The amendments introduced two types of unpaid job-protected leave, specifically three days of illness or injury leave and specific COVID-19-related leave. The three days of illness or injury leave have been implemented on a permanent basis, while COVID-19-related leave is intended to be a temporary measure so long as the COVID-19-related circumstances last.
Importantly, the amendments not only protect COVID-19-related leave, but require employers to re-employ employees who were dismissed on or after January 27, 2020 because of COVID-19-related circumstances as described in the new provisions. The amendments also prohibit employers from requesting COVID-19 medical notes, although employers may request employees to provide other “sufficient proof” of COVID-19 circumstances.
Unpaid illness or injury leave
Employees with over 90 consecutive days of employment with an employer are entitled to three days of unpaid job-protected illness or injury leave per year. Employers may request that the employee provide reasonably sufficient proof that the employee is entitled to this leave.
Unpaid COVID-19-related leave
Employees are eligible for unpaid COVID-19-related leave for as long as they are:
- diagnosed with COVID-19 and are acting in accordance with medical instructions or advice;
- in quarantine or self-isolation in accordance with Provincial Health Officer orders, orders made under the Quarantine Act (Canada), or guidelines of the BC Centre for Disease Control or Public Health Agency of Canada;
- directed not to work by their employer due to concern about the employee’s exposure to others;
- providing care to (a) a child under their care or as their parent or guardian or (b) a person 19 years of age or older who is unable to obtain necessities of life or withdraw from the charge of their parent or former guardian, or is under the care of the employee who is the person’s parent or former guardian; and
- outside the province and cannot return to BC because or travel or border restrictions.
COVID-19-related leave is now available and retroactive to January 27, 2020. This leave is expected to be repealed when it is no longer needed.
If an employer dismissed an employee on or after January 27, 2020, but before the foregoing amendments came into force, due to COVID-19 circumstances as described above, the employer must offer the employee re-employment in the same or comparable position and the employee’s absence will be deemed to be COVID-19-related leave.
Employers may request sufficient proof of COVID-19 circumstances from the employee, however, employers must not request or require an employee to provide “a note from a medical practitioner, nurse practitioner or registered nurse.”
Bill 16-2020 also anticipates further prescribed persons under care and COVID-19-related circumstances that may expand the provisions above.
For additional information, the BC Government’s announcement is here.
By Christina Badgley and Struan Robertson, DLA Piper