In response to the public health emergency caused by Covid-19 in British Columbia, the BC legislature has passed a temporary amendment to the Employment Standards Act. The interim measure creates a right to “Covid-19-related leave”. A major purpose of this legislation is to prevent affected employees from losing their job due to temporary or permanent layoff.
Covid-19 related leave is not limited to a certain number of weeks. The employee can stay on leave so long as they are eligible for it, in other words, until the circumstances that put them on leave cease to apply. Because the leave is unpaid, the employer should issue a Record of Employment promptly once the employee commences the leave.
How can an employee initiate Covid-19 leave?
Section 52.12 provides that an employee can initiate an unpaid leave if:
- They are diagnosed with Covid-19 and acting in accordance with medical orders or advice;
- They are in quarantine or self-isolation in accordance with government directions;
- They are providing care to a child or other dependent, including because of a Covid-19-related school or daycare closure;
- The employee is outside of BC and cannot return because of border restrictions;
- The employer has directed the employee not to work due to concerns about exposure, and the employee requests to take Covid-19 leave.
The employer can request some supporting evidence for the employee’s absence, for example evidence that their daycare has closed. The employer cannot request a doctor’s note. This should be treated as specific to present circumstances, in which medical practitioners’ time is in excessive demand. For other medical absences not related to Covid-19, it is appropriate for the employee to provide a medical basis for their absence.
Some employees are refusing to come to work because they generally prefer to self-isolate, even in the absence of a specific workplace threat. While the new legislation doesn’t address that situation directly, given the leave is unpaid, employers are probably well advised to allow such employees to access Covid-19 leave.
Can an employer initiate Covid-19 leave?
Covid-19 leave can only be requested by the employee. The employer has an obligation to provide a safe workplace, and may direct “exposed” employees not to work. In response, the employee may request unpaid Covid-19 leave. The employer does not initiate the leave, but rather it may initiate the circumstances giving rise to the employee’s request.
The Covid-19 leave provision gives the employee an alternative to layoff or dismissal due to exposure to Covid-19. It does not help the employer facing shortages of work, for example restaurants, salons, or gyms that have been temporarily shut down. In those circumstances, the employer’s options are set out here.
What does the Act say?
The wording of the new Section 52.12 is not yet posted online as of writing this article. We have reproduced it below as follows (emphasis is ours):
(1) In this section, “eligible person”, with respect to an employee, means any of the following:
(a) a child who is under the day-to-day care and control of the employee by way of agreement or court order or because the employee is the child’s parent or guardian;
(b) a person who
(i) is 19 years of age or older,
(ii) is unable, because of illness, disability or another reason, to obtain the necessities of life or withdraw from the charge of the person’s parent or former guardian, and
(iii) is under the day-to-day care and control of the employee, who is the person’s parent or former guardian;
(c) a prescribed person.
(2) An employee who requests leave under this section is entitled to unpaid leave for the period described in subsection (3) if, in relation to COVID-19, any of the following applies:
(a) the employee has been diagnosed with COVID-19 and is acting in accordance with
(i) instructions or an order of a medical health officer, or
(ii) advice of a medical practitioner, nurse practitioner or registered nurse;
(b) the employee is in quarantine or self-isolation in accordance with
(i) an order of the provincial health officer,
(ii) an order made under the Quarantine Act (Canada),
(iii) guidelines of the British Columbia Centres for Disease Control, or
(iv) guidelines of the Public Health Agency of Canada;
(c) the employer, due to the employer’s concern about the employee’s exposure to others, has directed the employee not to work;
(d) the employee is providing care to an eligible person, including because of the closure of a school or daycare or similar facility;
(e) the employee is outside the province and cannot return to British Columbia because of travel or border restrictions;
(f) a prescribed situation exists relating to the employee.
(3) A employee is entitled to leave under this section for as long as a circumstance described in subsection (2) applies to the employee.
(4) If requested by the employer, the employee must, as soon as practicable, provide to the employer reasonably sufficient proof that a circumstance described in subsection (2) applies to the employee.
(5) An employer must not request, and an employee is not required to provide, a note from a medical practitioner, nurse practitioner or registered nurse for the purposes of subsection (4).
Helping employers deal with Covid-19
This new section of the Employment Standards Act fills a gap created as Covid-19 kept employees out of the workplace. It does not alleviate the situation of an employer facing a shutdown due to shortage of work or government directive – in that situation, employers should be seeking advice about their ability to temporarily lay off employees. Review the rest of your Covid-19 workplace legal obligations, rights, and options here.