The Employment Standards Act of British Columbia (the “Act”) was recently amended to provide protection for employees affected by COVID-19. The amendments provide that an unpaid, job protected leave, is available to any employee who:
- is diagnosed with COVID-19 and is following the instructions of a medical health officer or the advice of a doctor or nurse;
- is in quarantine or self-isolation and is acting in accordance with an order of the provincial health officer, an order made under the Quarantine Act (Canada), guidelines from the BC Centre for Disease Control, or guidelines from the Public Health Agency of Canada.
- has been directed by the Employer not to work due to concern about his/her exposure to others;
- needs to provide care to his/her children (including a dependent adult who is his/her child or formerly foster child) for a reason related to COVID-19, including a school or daycare of similar facility closure; or
- is outside of BC and unable to return to work due to travel or border restrictions.
There is no time limit on the COVID-19 leave. It will last as long as an employee is unable to work for any of the COVID-19 related reasons noted above. Employers are required to keep the same or comparable position open to an employee who returns from the leave and cannot terminate or otherwise discipline an employee for COVID-19 related reasons.
As noted above, COVID-19 leave is unpaid leave, however, Employers must continue:
- the employee’s medical, pension, or other plan beneficial to an employee (if the Employer makes premium cost payments or if they share cost payments and the employee wants to continue the benefits and is prepared to pay their share of the premiums); and
- calculating annual vacation, termination entitlements, pension, benefits or length of service as if the employee was continuing to work;
during the COVID-19 leave, for however long it may last.
The amendments are also retroactive to January 27, 2020, which means that if any employee was terminated on or after that date for COVID-19 related reasons, the employee is deemed to be on COVID-19 leave instead of terminated and still an employee of the Employer. Any such employee must be offered re-employment at the end of the leave.
Employers are permitted to request reasonable proof from an employee requiring the COVID-19 leave, if applicable, but are not permitted to require a doctor’s note to avoid additional strain on the medical system.
For employees that take COVID-19 leave, Employers should issue an appropriate Record of Employment as directed by the Government of Canada for any of these employees and should note the appropriate reason for the leave.
We strongly encourage employers to keep informed and updated on this situation as it is regularly changing. We also encourage employers to be as flexible and understanding as possible in this uncertain time, which may include more flexible hours and work arrangements with employees. Wherever possible, we encourage employers to try and come to an agreement with an employee up front on a reasonable and suitable alternative working arrangement.
This can be a stressful situation for employers and employees alike. Please contact us for specific guidance and advice about your situation and we would be happy to help you.