B.C. moves to protect jobs of people affected by COVID-19

Law360 Canada (March 24, 2020, 3:42 PM EDT) -- Workers in British Columbia can rest a little easier after the provincial government passed a bill to give greater protection to individuals who cannot work due to the fallout of the COVID-19 pandemic.

On March 23, the B.C. legislature passed amendments to the Employment Standards Act which allow people to immediately take unpaid, job-protected leave if they are unable to work for reasons relating to the virus, which includes individuals who are ill, need to self-isolate, need to care for their child or other dependent, or whose employer is concerned that the employee may expose others to risk.

“These proactive changes ensure that no one will lose their jobs for prioritizing their health and safety, or the health and safety of their loved ones and their community,” said Minister of Public Safety and Solicitor General Mike Farnworth. “Given these extraordinary times, we are ensuring that the legislation provides protections for those impacted by COVID-19.”

The leave will be retroactive to Jan. 27, the date that the first presumptive COVID-19 case was confirmed in B.C., and will be repealed once the crisis ends. But the legislation does make a permanent change to the Act, providing for up to three years of unpaid, job-protected leave each year for people who cannot work due to illness or injury. This brings the province in line with most other Canadian jurisdictions, which all offer some form of job-protected illness leave.

“This crisis has highlighted the importance of having permanent job-protected illness or injury leave in place for people in this province,” said Minister of Labour Harry Bains. “We’re stepping up and bringing in this new leave to support workers over the long term, beyond this crisis.”

In addition, the new B.C. Emergency Benefit for Workers will provide a tax-free $1,000 payment to British Columbians whose ability to work has been affected by the outbreak. The benefit will be a one-time payment for British Columbians who receive federal employment insurance (EI) or the new federal emergency care benefit or emergency support benefit as a result of COVID-19 impacts.

“The COVID-19 pandemic challenges our health, our economy and our way of life. People and businesses urgently need support,” said Premier John Horgan. “Our action plan focuses on services to protect people’s health and safety, gives immediate relief to people and businesses, and plans for B.C.’s economic recovery over the long term.”

Fred Wynne of Vancouver’s HHBG Lawyers said the moves are “unquestionably a step in the right direction,” adding the provisions are framed as unpaid leave at the employee’s request “although it is also just basically an entitlement that there can’t be any termination.”

“This is obviously being done pretty quickly, but really the overwhelming theme here is that people can’t lose their job because they need to take care of their families or because they have been affected specifically by COVID-19,” he said. “That is different from what other places have done, which I understand is to put in general sort-of pandemic or illness-type protections, but B.C. is specifically limiting it to this situation. So, I imagine it is going to disappear or perhaps be replaced by something more detailed once the situation calms down a bit.”

Wynne said it is similar to the requirements for re-employment and job protection that can be seen in other circumstances, such as maternity leave.

“But this one is going to be a little bit different because we are probably facing a recession for a while once we get out of this, so there are probably going to be legitimate economic circumstances that cause problems,” he said. “That has to be worked out — if they are going to be letting people go, there would probably have to be compensation for that, although that is not spelled out in any of these amendments now. We just have to take it from there.”

But it is “interesting” the job-protected leave requirements don’t include elder care, said Wynne.

“If your school-age child or your former dependent child who is in university or something like that comes back, that is a reason to get job protected leave to care for them but taking care of your vulnerable elderly parent is not,” he said. “I don’t know why the elder care is missing, and I think that is something that is going to be an issue — we know that elderly people are most affected and most vulnerable.”

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