Update: March 24, 2020

New COVID-19 Leave

On March 23, 2020, the BC government passed amendments to the Employment Standards Act (“ESA”) to support workers during the pandemic crisis by creating a COVID-19-related leave. The new provisions permit an employee to take an unpaid leave from work in any of the following circumstances that apply to that employee:

• Diagnosed with COVID-19 and is acting in accordance with advice from a health officer or medical professional;
• Not diagnosed with COVID-19, but is in quarantine or self-isolation in accordance with a government order or the guidelines of the BC Center of Disease Control or Public Health Agency of Canada;
• Directed by the employer not to work due to the employer's concern about the employee's exposure to others;
• Providing care to a child or person with a disability, including because of the closure of a school or daycare or similar facility because of COVID-19 (we don’t believe this would apply if school was closed for other reasons, such as the end of the school year);
• Is outside the province and cannot return to British Columbia because of travel or border restrictions;
• Any other circumstances prescribed by regulation (there are none yet).

It appears that these circumstances are meant to coincide with the employee’s eligibility for federal employment insurance and/or other emergency care benefits. Importantly, this leave is not likely available to employees who are laid off solely due to the employer’s shortage of work or business downturn arising from the COVID-19 pandemic.

The employee is entitled to the leave for as long as one or more of the COVID-19 related circumstances above apply to them. Under section 54 of the ESA, the employer must not terminate employment or change a condition of employment without consent because of the COVID-19 leave. Under section 126, the burden is on the employer to prove that a termination during the leave is not related to the leave.

As soon as the leave ends, the employer must place the employee back in the same or comparable position they had before the leave started. Under section 56, the employment is deemed continuous while the employee is on leave for the purposes of calculating annual vacation entitlement, termination pay entitlement, and any pension, medical, or other benefit plan.  In this sense, the COVID-19 leave operates similarly to a maternity or parental leave under the ESA.

A medical note is not required and cannot be requested by the employer and we hope that all parties will be acting in good faith at this time. However, if requested by the employer, the employee must provide “reasonably sufficient” proof that one of the circumstances apply to them.

Importantly, the leave is retroactive to January 27, 2020 (the date of the first confirmed COVID-19 case in BC). This means that if an employer has terminated an employee on or after January 27, 2020 due to one of the above circumstances, the employer must offer that employee re-employment in the same or a comparable position. The retroactivity provision raises some interesting questions where employer may have laid-off or terminated employees to which the leave would apply, particularly if they have already provided severance payments and/or ended benefits for those employees.

*Note: the amendments also created a new illness or injury leave, which entitles employees with 90 or more consecutive days of employment to up to 3 days of unpaid leave in each year of employment for personal illness or injury.

Provincial Action Plan

The BC Government has also announced the details of its COVID-19 Action Plan, which includes the following relief for employees and businesses:

• For workers, a new BC emergency benefit of $1,000, which is a tax-free one-time payment for BC residents who receive federal EI or the new federal emergency care benefit or emergency support benefits as a result of COVID-19 impacts:
• Includes workers who have been laid off, who are sick or quarantined, parents with sick children, parents who stay at home from work while child care centers and schools are closed, and those caring for sick family members, such as an elderly parent
• The workers can be EI eligible and non-EI eligible, such as self-employed
• The benefit will be paid to BC residents in addition to federal income supports
• For businesses:
• Businesses with a payroll over $500,000 can defer their employer health tax payments until September 30, 2020. Businesses with a payroll under this threshold are already exempt from this tax
• The province is extending tax filing and payment deadlines for PST, municipal and regional district tax, tobacco tax, motor fuel tax and carbon tax until September 30, 2020
• Business and light and major industry property classes will see school tax cut in half – relief for businesses who own their own property and will allow commercial landlords to immediately pass savings on to their tenants in triple-net leases
• Longer term plans coming for recovery of hard-hit parts of the economy such as tourism, hospitality and culture sectors to build economic stimulus

As noted in our March 17, 2020 update, there are further details coming on a federal government stimulus package currently under debate in Parliament. We will provide the details once they are finalized but we expect them to include a temporary wage subsidy for employers and other emergency care benefits for workers not eligible for EI.

Note to our Readers: Information regarding COVID-19 is rapidly evolving. We are working to bring you up-to-date articles as the legal issues unfold. This is not legal advice. If you are looking for legal advice or are dealing with an issue in relation to COVID-19, please contact our Employment & Labour Group:

Chris Drinovz [email protected]

Mike Weiler [email protected]

Melanie Booth [email protected]

Jesse Dunning [email protected]

Visit us here: https://www.ksw.bc.ca/employment-law/

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