On April 9, 2018, BC’s Minister of Labour introduced Bill 6, the Employment Standards Amendment Act, to the BC Legislature. Bill 6 includes proposed amendments to the Employment Standards Act (“ESA”) to bring certain types of leave into line with the Federal government’s recent changes to the Employment Insurance Act so that employees are entitled to job protection under the ESA for the same amount of time they are entitled to employment insurance benefits. In addition, Bill 6 also creates two new types of job-protected leave for death or crime-related disappearance of a child.
The changes proposed by Bill 6 can be summarized as follows:
|Leave||Previous Entitlement||Amended Entitlement|
|Maternity||May begin at any time 11 weeks before due date and the actual birth date and last up to 17 weeks||May begin 13 weeks before due date and last up to 17 weeks|
|Parental||Up to 35 weeks if pregnancy leave taken
If pregnancy leave not taken, up to 37 weeks beginning after birth and within 52 weeks of birth
For adopting parents, up to 37 weeks that must begin within 52 weeks of placement
Combined pregnancy and parental leave limited to 52 weeks
|Up to 61 weeks if pregnancy leave taken
If pregnancy leave not taken, up to 62 weeks, which must begin within 78 weeks of birth
For adopting parents, up to 62 weeks that must begin within 78 weeks of placement
Combined pregnancy and parental leave limited to 78 weeks (18 months)
|Compassionate care||Up to 8 weeks, must be taken within a 26 week (or prescribed) period||Up to 27 weeks that must be taken within a 52 week period|
Bill 6 also entitles a parent whose child under 19 years of age goes missing due to a crime to 52 weeks of unpaid leave. If the child is found alive during the leave, the leave continues for a maximum of 14 days. If the child is found deceased, this leave ends immediately. Bill 6 also separately entitles a parent whose child under 19 years of age dies to 104 weeks of unpaid leave immediately after the death under any circumstances or after the child is found deceased following a disappearance. This leave is in addition to three days of bereavement leave currently available. Both of these leaves must be taken in a single continuous period, or on an intermittent basis with the employer’s consent.
Bill 6 also includes transitional provisions that dictate whether the previous or amended entitlements apply in each circumstance. For maternity leave, subject to the specified notice requirements, the effect of the transition rules is that employees who are already on leave, who have previously provided notice to go on leave, and those who provide notice in the future will all be entitled to the increased leave. For parental leave, the entitlement to the increased leave depends on whether the employee’s child was born or placed with the adopting employee on or after December 3, 2017. Finally, for compassionate care leave, the increased entitlement is available not only to those who have given notice of the leave or who are already on leave but also to those whose leave commenced within 52 weeks prior to the date the amendments come into effect.
As a result, employers may be required to extend the backfill measures that had previously been arranged for the original length of a leave. The amendments do not alleviate any obligations that were previously imposed on employers concerning, for example, payments to pension, medical or other benefits plans that must be made on behalf of employees during statutory leaves. Service during leaves will continue to be recognized for all purposes such as vacation entitlement.
Bill 6 came into force on the date of Royal Assent, May 17. Other amendments to the Employment Standards Act are expected in the future as well as amendments to the Labour Relations Code and Occupational Health & Safety related legislation.
Written with the assistance of Dallan Poulin, articling student.