Understanding Job Protected Leaves

28. July 2021 0

All workers in BC are covered by the British Columbia Employment Standards Act (the “Act”).  The Act provides employees with a number of job protected leaves, some of which are paid and most of which are unpaid. These leaves trigger duties and responsibilities on employers.  There are a variety of different types of leaves and employees do not need to have been employed for a set period of time to be entitled to most of them.  When an employee takes a leave protected by the Act, their employment is considered continuous during the period of leave.  This means that the employee will continue to receive wage or benefit increases that they would have received if they had not taken the leave and the employer must continue to pay benefit plans.  When the leave ends, the employee must be returned to either their job or a similar position.  The employer cannot terminate an employee or change the conditions of their job without the written agreement of the employee.  If during the course of the leave the employee’s job was eliminated and no similar role exists, they can be laid off, however, they will be entitled to compensation based on the length of their employment. 

The job protected leaves available to employees in British Columbia include the following:

COVID-19 – paid vaccination leave – employees can take up to 3 hours of paid leave to be vaccinated against COVID-19 and if necessary they can take additional paid leave for a second dose.

COVID-19 – paid sick leave – Employees are entitled to up to 3 days of paid leave between May 20, 2021 and December 31, 2021 if they are unable to work for any of the following reasons:

  • they have been diagnosed with COVID-19 and are following the instructions of a medical health officer or the advice of a doctor or nurse,
  • they are in isolation or quarantine and are 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; or
  • the employer has directed them not to work due to concern about exposure to others.

COVID-19 unpaid leave – employees can take unpaid, job protected leave related to COVID-19 if they are unable to work for any of the following reasons:

  • they are assisting a dependent being vaccinated against COVID-19,
  • they have been diagnosed with COVID-19 and are following the instructions of a medical health officer or the advice of a doctor or nurse,
  • they are in isolation or quarantine and 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,
  • the employer has directed them not to work due to a concern about exposure to others,
  • they need to provide care to an eligible person for a reason related to COVID-19 including a school, daycare or similar facility closure,
  • they are outside BC and unable to return to work due to travel or border restrictions; or
  • they are more susceptible to COVID-19 in the opinion of a medical professional because of an underlying health condition, ongoing treatment or other illness and are receiving Canada recovery sickness benefits for the leave.

Leave respecting domestic or sexual violence – employees can take up to 5 days of paid leave and 5 more days of unpaid leave per calendar year if they are impacted by domestic or sexual violence.  If necessary, an employee can take up to 15 more weeks of unpaid leave.  This leave also applies to parents of a child or dependent impacted by this kind of violence.

Personal illness or injury leave – employees may take up to 3 days of unpaid, job protected leave each year when they cannot work due to personal injury or illness.  This leave applies to employees who have worked for their employer for at least 90 days.

Maternity and parental leave – pregnant employees are entitled to up to 17 consecutive weeks of unpaid maternity leave.  The leave must continue for at least six weeks after the birth of the child and in circumstances of termination of a pregnancy, employees are entitled to take up to 6 consecutive weeks of leave starting on the date a pregnancy ends.  Employees can take up to 62 weeks of unpaid parental leave, beginning at any time within 78 weeks of a baby being born or a child being placed.

Family responsibility leave – employees are entitled to take up to five days of each employment year, for the care, health or education of a child in their care under the age of 19.

Critical illness or injury leave – An employee can take unpaid leave to care for a family member whose health has significantly changed as a result of an illness or injury, and the life of the family member is at risk.  The employee can take up to 36 weeks to care for a child and up to 16 weeks to care for a family member over the age of 19.

Compassionate care leave – Employees are entitled to take up to 27 weeks of unpaid compassionate care leave within a 52 week period to care for a family member who is terminally ill.

Bereavement leave – An employee can take up to three days of unpaid leave if an immediate family member dies.

Leave respecting the disappearance of a child – An employee can take up to 52 weeks of unpaid leave if their child disappears as the result of a crime.

Leave respecting the death of a child – An employee is entitled to 104 weeks of unpaid leave if their child dies.

Reservists leave – Employees who are also a reservist for the Canadian Forces are entitled to 20 days of unpaid leave in a calendar year for the following reasons:

  • Being deployed to a Canadian Forces operation outside of Canada
  • Participating in pre or post deployment training activities
  • Being deployed to assist with an emergency or its aftermath in Canada

Jury duty leave – An employee can take unpaid jury duty leave to attend court as a juror.

As an employer, it is important to be aware of the leaves that are available to your employees.  It is important to understand which leaves are paid leave, which leaves are unpaid and which leaves require the employee to have been employed for a set period of time to be entitled to the leave.  Equally important is understanding what it means for a leave to be job protected.  That requires the employer to not change the terms or conditions of employment due to the leave.  Finally, it is important to understand that the requirements of the Act are the minimums that an employer must comply with.  Many employers may provide leaves in excess of those required by the Act or may provide for payments in excess of those required by the Act.

This update was authored by Rose Keith. Have questions about workplace leaves? Contact Rose at rkeith@harpergrey.com or anyone else listed on the authors page.