BC Enacts Job Protection COVID-19 Affected Employees

On March 23, 2020, new job protections were added for employees in BC who are ill or injured or who are unable to work due to COVID-19. Bill 16, which amends the Employment Standards Act, provides mandatory unpaid leave entitlements for ill, injured, and COVID-19-affected employees and prohibits employers from retaliating against employees who require an unpaid leave of absence.

COVID-19-related leave

Following the passage of Bill 16, employers are not permitted to terminate employees (and must offer re-employment to employees who have already been terminated) if the employee has to miss work due to COVID-19 for one of the reasons listed below.

Employees are entitled to an unpaid leave of absence if they meet any of the following requirements with respect to COVID-19:

  1. The employee has been diagnosed with COVID-19 and is acting in accordance with the instructions of a medical professional;
  2. The employee is in quarantine or self-isolation in accordance with an order of the provincial health officer or under the Quarantine Act, or pursuant to guidelines from the BC Centre for Disease Control or the Public Health Agency of Canada;
  3. The employer has directed the employee not to work due to concern about the employee's exposure to others;
  4. The employee is caring for a dependent child, or caring for a dependent adult who is unable to obtain the necessities of life on their own, because of the closure of a school, daycare, or other similar facility; or
  5. The employee is outside of the province and cannot return to BC because of travel or border restrictions.

Additional requirements may be added to this list at a later date.

The employee's leave of absence may last as long as any of these requirements are met. Although an employer may require an employee to provide reasonable proof that these requirements are met, an employer must not request that an employee provides a medical note to support the leave of absence.

This section also applies to retroactively. If an employer has terminated an employee for one of the reasons listed above since January 27, 2020, then the employer must offer re-employment to the terminated employee in the same (or in a comparable) position.

When the COVID-19 outbreak is resolved, this section may be repealed entirely.

Unpaid sick leave

Bill 16 also introduces unpaid sick leave requirements for the first time in BC. After 90 consecutive days of employment, employers will now be required to provide employees with up to three days of unpaid leave each year for personal illness or injury. The employer may request reasonable proof of the illness or injury.

While other provinces already have similar requirements, this is the first time that BC's Employment Standards Act has provided job protection for employees who require time off to recover from illness or injury (although it should be noted that the BC Human Rights Code protects against discrimination on the basis of a mental or physical disability). Unlike the COVID-19-related job protections, the unpaid sick leave entitlement is not explicitly intended to be temporary.

Remedies for breaches

What happens if an employer violates the requirement to provide COVID-19-related leave or unpaid sick leave? The employer can be penalized, and can be ordered to do one or more of the following:

  • Reinstate the employee and pay them any wages lost because of the breach;
  • Pay the employee compensation instead of reinstatement; and
  • Pay for expenses incurred by the employee as a result of the breach.

Note: While the amended Employment Standards Act is not yet available online, the changes to the Act in Bill 16 can be viewed here. Bill 16 was passed and received Royal Assent on March 23, 2020.

brendan harvey - wrongful dismissal vancouver
About the Author

Brendan Harvey advises and represents employees and small businesses at all stages before, during, and after the employment relationship. His primary areas of practice include wrongful dismissal, employment standards, and human rights litigation. If you would like to schedule a meeting with Brendan Harvey or any other of our lawyers, give us a call at 604-988-1000.

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