On Monday, March 23, 2020, the British Columbia Government amended the BC Employment Standards Act with Bill 16 – Employment Standards Amendment Act (No. 2), 2020  to grant BC employees the ability to take a job-protected unpaid COVID-19-related leave.

This leave was mentioned in our previous post regarding human rights, employment law, and COVID-19, however, the legislation and details contained within it were not known until March 23, 2020.

In introducing the new legislation in parliament, the Honourable Michael Farnworth stated the following:

Bill 16 amends the Employment Standards Act to provide unpaid job-protected leave to employees in British Columbia during the COVID-19 crisis. COVID-19 is an unprecedented public health emergency for British Columbians and for people across Canada and around the world.

The most important part of our work is protecting British Columbians. During this crisis, no employee will lose their job or be fired for following an order of the provincial health officer or for needing to care for a child whose school is closed.

According to section 52.12(2) of the legislation, employees are entitled to unpaid leave if, in relation to COVID-19, any of the following situations apply:

1. the employee has been diagnosed with COVID-19 and is acting in accordance with their doctor or an order of a medical health officer;
2. the employee is in quarantine or self-isolation in accordance with an order of the provincial health officer (Dr. Bonnie Henry – her Orders are available here), an order made under the Quarantine Act (for example, the most recent emergency order requiring persons entering Canada from elsewhere to self-isolate for 14 days), guidelines of the BC Centre for Disease Control (available here), or guidelines of the Public Health Agency of Canada (available here);
3. the employer, due to a concern about exposing others, has directed the employee not to work;
4. the employee is providing care to their child due to the closure of the child’s school, daycare, or similar facility; or
5. the employee is outside the province and cannot return to BC because of travel or border restrictions.

These circumstances outlined in section 52.12(2) are quite broad, as they allow people to follow not only the provincial health officer’s orders, but her recommendations as well. For example, when the legislation was being debated, MLA Sonia Fursteau asked for confirmation that it protects a cashier with significant respiratory issues from needing to attend work. Someone in this position is protected because the provincial health minister has recommended that they not attend work.

Section 52.12(3) of the legislation allows the leave to carry on for as long as the circumstances in section 52.12(2) apply to the employee.

The Employment Standards Act, as amended, allows the employer to request proof the the above circumstance exists; however, the employee is not required to provide a doctor’s note. What kind of proof is required will thus vary according to the circumstances and is yet to be seen. If an employee needs to take the leave due to their child’s daycare being closed, for example, a letter from the daycare notifying parents of the closure may be sufficient proof.

The Employment Standards Amendment Act also came with transitional provisions that make employees eligible for the leave as of January 27, 2020 (the first day a coronavirus case was reported in BC). This means that if an employee is already off of work because of an eligible situation set out in section 52.12(2), they cannot be terminated. It also means that if an employee was terminated after January 27, 2020 but before March 23, 2020, due to the circumstances outlined in section 52.12(2), the employer must offer the employee re-employment in the same or a comparable position.

Presumably, if an employee is terminated in the above circumstances, for example when they need to stay home and care for a child who has lost childcare, a human rights complaint could still be available as well.