British Columbia’s legislative response to COVID-19 – two new leaves under the Employment Standards Act and a $5 billion COVID-19 Action Plan

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  • March 24, 2020

British Columbia’s legislative response to COVID-19 – two new leaves under the Employment Standards Act and a $5 billion COVID-19 Action Plan

On March 23, 2020, the British Columbia Legislative Assembly reconvened to consider urgent legislation in light of the rapidly evolving landscape surrounding COVID-19.  Two pieces of legislation were enacted – the Employment Standards Amendment Act (No. 2) and the Supply Act (No. 2).

The Employment Standards Amendment Act amends the current Employment Standards Act by adding two new leave provisions.  The first is illness or injury leave, and the second is COVID-19-related leave.

The illness or injury leave allows an employee to take up to 3 days of unpaid leave in each employment year due to personal illness or injury.  In order to be eligible for the leave, the employee must have been employed with the employer for over 90 consecutive days.  The employer may also request the employee to provide reasonably sufficient proof of their illness or injury.  This leave will be an ongoing entitlement available to employees moving forward.

The COVID-19-related leave allows an employee to take unpaid leave for the length of period in which the employee:

  1. Was diagnosed with COVID-19 and is following the instructions or advice of a medical health officer or medical professional;
  2. Is in quarantine or self-isolation in accordance to orders or guidelines by a public health authority;
  3. Was directed by their employer not to work due to their concern about the employee’s exposure to others;
  4. Is providing care to their child or their ill or disabled adult family member (due to, for example, closure of daycares, schools or other similar facilities); or
  5. Is outside British Columbia and cannot return because of travel or border restrictions.

The employer may request reasonably sufficient proof of the employee’s entitlement to COVID-19-related leave.  However, unlike the personal illness or injury leave, in the case of COVID-19-related leave, an employer may not request a medical note from the employee.

It is important to note that the COVID-19-related leave provision is retroactive to January 27, 2020.  This means that if an employee was terminated on or after January 27, 2020 due to one of the prescribed circumstances above (i.e.: diagnosed with COVID-19, quarantined or in self-isolation, directed not to work, provided care to a family member, or was unable to return to the province), the employer must offer the employee re-employment in the same or a comparable position.

The COVID-19-related leave provision is time-limited while the virus remains a threat and may be repealed once the crisis has passed.

At this time, neither B.C.’s elected officials nor the Director of Employment Standards have issued any statement regarding whether the COVID-19 pandemic will be deemed to be an “unforeseeable event or circumstance” relieving employers in some circumstances of having to provide Employment Standards Act termination notice or pay to employees who are terminated due to the pandemic’s impact on their business.

The Supply Act approves $5 billion in funding to support the government’s COVID-19 Action Plan.  The Action Plan includes income supports, tax relief, and direct funding for people, businesses and services.[1]

Most notably for workers, a new B.C. Emergency Benefit for Workers will provide a one-time, tax-free $1,000 payment to British Columbians whose ability to work has been negatively affected by the outbreak.  This includes workers who have been laid-off, who are sick or quarantined, who had to stay home to care for their sick children or family members, and parents who had to stay home due to closures of daycares or schools.  The payment is in addition to any federal income supports such as Employment Insurance and is also available to some workers who are non-EI eligible.  More details on how workers can apply for the payment is still to come, however the government commented on Monday that workers likely won’t receive payment until May.

[1] https://news.gov.bc.ca/releases/2020PREM0013-000545