Job protection for employees unable to work due to COVID-19

As of March 23, 2020, British Columbia introduced amendments to the Employment Standards Act to support employees during the COVID-19 crisis and in the future. The recent changes are retroactive to January 27, 2020.

According to the legislative changes, the following situations entitle employees to unpaid leaves of absence:

• The employee is diagnosed with COVID-19 and acting in accordance with advice from medical professionals;

• The employee is in quarantine or self-isolation in accordance with an order of the provincial health officer, an order made under the Quarantine Act (Canada), guidelines of the British Columbia Centre for Disease Control, or guidelines of the Public Health Agency of Canada;

• The employer has directed an employee not to work due to concerns of exposure to others;

• The employee is providing care to an eligible person, including because of the closure of a school, daycare, or similar facility;

• The employee is prevented from returning to British Columbia because of travel restrictions; or

• A prescribed situation exists relating to the employee.

In other words, employees who are ill, require self-isolation, need to care for their dependents, or whose employer is concerned that the employee may expose others to risk, may take leave without putting their jobs at risk.

Employees wishing to take leave due to COVID-19 are not required to provide medical notes to their employers. However, employers may require that employees provide evidence that is reasonable in the circumstances to support their absence.

In addition to the above changes, employees are also entitled to up to three days of unpaid, job-protected leave each year for those who cannot work due to illness or injury. To qualify for the three-day job-protected illness or injury leave, employees must have worked for their employer for at least 90 days, and employees may be required to give reasonable evidence of eligibility on the request of the employer.

Of note, the Employment Standards Branch ("ESB") recently provided guidance on how business closures and staffing reductions related to the COVID-19 crisis may exempt employers from providing statutory termination notice or pay in lieu of notice upon termination of an employment relationship. The ESB has yet to clarify whether a pandemic qualifies as an “unforeseeable event or circumstance” causing disruption to the employment contract. Regardless, the ESB has indicated that: 1) the exemption regarding statutory notice or pay in lieu only may apply; and 2) whether the exemption applies is on a case-by-case basis.

The reality is that many businesses may be forced to lay off or reduce the number of its employees, and employers and employees alike are expected to suffer during these unprecedented times. If there are questions or uncertainties surrounding an employment relationship, it is always best to seek consultation or obtain legal advice, if possible.