Employers take note – employees covered by the British Columbia Employment Standards Act (ESA) are now entitled to significantly longer and brand new leaves of absence.
Bill 6, which came into effect on May 17, 2018, amended provisions of the ESA relating to pregnancy, parental, and compassionate care leave. The Bill also created two new forms of leave, relating to the disappearance and death of a child. In this post, I explain each of the amendments to the ESA and some of the implications they will have for employers in BC.
Expanded Forms of Leave
- Pregnancy Leave
Previously, expecting birth mothers were permitted to begin their pregnancy leave 11 weeks prior to their child’s expected birth date. Now, the amended section 50 of the ESA extends this number to 13 weeks. Birth mothers who commence their pregnancy leave after their child is born are now entitled to 17 weeks of leave – 11 weeks more than under the previous law.
If an employee proposes to return to work early after giving birth, the amended ESA provisions also permit her employer to require that she provide a certificate from a doctor or nurse practitioner stating that the employee is able to resume work.
- Parental Leave
The amended section 51 of the ESA now allows birth mothers to take up to 61 weeks of parental leave (up from 35 weeks); however, this leave must begin immediately following maternity leave.
As for non-birth parents, section 51 allows them to take 62 consecutive weeks of unpaid leave, beginning within 78 weeks after the birth or placement of a child. (The previous law allowed for up to 37 weeks of parental leave within a 52-week period.)
The amendments relating to both pregnancy and parental leave bring the ESA in line with the benefits that new parents are entitled to under the Employment Insurance Act.
It is also important to note that the new pregnancy and parental leave entitlements will be applied retroactively. Employees who had yet to begin or were already taking these types of leave when the amendments took effect are entitled to the new leave periods set out in Bill 6.
- Compassionate Care Leave
If a family member requires care due to health issues and there is a significant risk of death within 26 weeks, section 52.1 of the ESA now allows employees to take up to 27 weeks of unpaid compassionate care leave within 52 weeks, a significant increase from the previous 8 week maximum.
New Forms of Leave
- Child Disappearance Leave
Bill 6 introduced two new forms of leave. The first, child disappearance leave, entitles an employee whose child (under the age of 19) disappears as a result of a crime to 52 weeks of unpaid leave. Unless the employer agrees otherwise, the leave must be taken continuously. Further, if the child is found, the parent is entitled to remain on leave for 14 days.
- Child Death Leave
Previously, the general bereavement leave provisions of the ESA allowed employees to take up to 3 days off following the death of a child (or other family member). The Bill 6 amendments changed this scheme by providing for specific leave entitlements following the death of a child. An employee whose child (under the age of 19) dies is now entitled under section 52.4 of the ESA to 104 weeks of unpaid leave from the date the child dies or is found dead. As with child disappearance leave, this leave must be taken continuously unless the employer agrees otherwise.
Implications for Employers
These amendments are clearly positive for employees. And, ultimately, they are also positive for employers as they promote employees’ health and well-being and, by extension, well-functioning workplaces.
Employers will, however, want to be prepared to respond to these changes:
- Make sure to review your employee contracts and leave policies to ensure that they are up-to-date. It is not uncommon for such documents to incorporate provisions of the ESA. However, any clause in a contract or policy that violates the ESA is unenforceable (and risks rendering the entire contract or policy void and therefore meaningless). Therefore, employers will want to ensure that all employee contracts and leave policies are properly updated so as to not violate the ESA.
- Remember that the Bill 6 amendments respecting pregnancy and parental leave apply retroactively. Therefore, you will want to ensure that you are accommodating employees who are currently or expecting to go on these forms of leave. Employers will be required to provide the enhanced forms of pregnancy and parental leave to all employees.
Have questions about how these new leave rules will affect you? Contact us today!
NOT LEGAL ADVICE. Information made available on the Kent Employment Law website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action, based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. One of our lawyers would be pleased to discuss any specific legal concerns you may have.