Recent Amendments to the Employment Standards Act to Protect Employees Affected by COVID-19

On March 23, 2020, in the face of the COVID-19 pandemic, British Columbia made two amendments to its Employment Standards Act, RSBC 1996, c 113 (the “ESA”) in order to protect employees affected by illness or injury. Local governments employ workers in a number of respects, and many of those individuals will likely be entitled to the protections afforded by these recent ESA amendments, which include the following:

  1. Employees who are affected by COVID-19 will now be entitled to receive an unpaid, job-protected leave if they are unable to work for the following reasons:
  1. The employee has been diagnosed with COVID-19 and is following the instructions of a medical health officer or the advice of a doctor or nurse;
  2. The employee has been in quarantine or self-isolation and is acting in accordance with an order of the provincial health officer, an order made under the Quarantine Act, or guidelines from the BC Centre for Disease Control or the Public Health Agency of Canada;
  3. The employee’s employer has directed them not to work due to concern about their exposure to others;
  4. The employee needs to care for a child (including a dependent adult child) for reasons relating to COVID-19, including a school or daycare closure; and
  5. The employee is outside of the province and unable to return to work due to travel or border restrictions.

This statutory leave can be retroactively applied as early as January 27, 2020 (the date on which the first presumptive case of COVID-19 in the province was confirmed) and can extend for as long as is required. The expectation is that the COVID-19 leave will be removed from the ESA once it is no longer needed.

  1. Employees who cannot work due to illness or injury will now be entitled to receive up to three days of unpaid, job-protected leave each year.

This measure is meant to apply beyond the scope of COVID-19 and will bring British Columbia in line with other Canadian jurisdictions with respect to employment standards for illness and injury leave. An employee must have worked for at least 90 days to be entitled to this leave, and will need to provide sufficient information demonstrating their entitlement to the leave upon request by their employer.

A state of emergency does not negate employers’ statutory obligations under the ESA. As such, local governments should be sufficiently apprised of the standards set out in the ESA, particularly with respect to leave, layoffs and terminations, as the ongoing COVID-19 pandemic is expected to continue to force closures of facilities, statutory leaves, and the impairment of operations in the coming months.

A cautionary note about the application of the ESA to unionized workers:

Though the above amendments to the ESA do not appear to apply to unionized workers, there is a common misconception that the ESA does not apply to such workers in any respect. Due to amendments to the ESA which were enacted in 2019, collective agreements entered into or renewed after May 30, 2019 must meet or exceed the standards set out in the ESA with regard to:

  1. special clothing;
  2. hours of work and overtime;
  3. statutory holidays;
  4. annual vacation and vacation pay; and
  5. seniority, retention, recall, termination and layoffs.

Local governments should therefore carefully consider the provisions of the ESA relating to these entitlements, even in the case of unionized workers.