Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations
EMPLOYMENT STANDARDS ACT - PART 6 - LEAVES AND JURY DUTY
ESA Section 50 – Pregnancy leave
This section explains a pregnant employee’s entitlement to unpaid leave and the length of the leave permitted.
50. (1) A pregnant employee who requests leave under this section is entitled to up to 17 consecutive weeks of unpaid leave
(i) no earlier than 11 weeks before the expected birth date, and
(ii) no later than the actual birth date, and
(i) no earlier than 6 weeks after the actual birth date, unless the employee requests a shorter period, and
(ii) no later than 17 weeks after the actual birth date.
(2) An employee who requests leave under this section after the birth of a child or the termination of a pregnancy is entitled to up to 6 consecutive weeks of unpaid leave beginning on the date of the birth or of the termination of the pregnancy.
(3) An employee is entitled to up to 6 additional consecutive weeks of unpaid leave if, for reasons related to the birth or the termination of the pregnancy, she is unable to return to work when her leave ends under subsection (1) or (2).
(4) A request for leave must
(a) be given in writing to the employer,
(b) if the request is made during the pregnancy, be given to the employer at least 4 weeks before the day the employee proposes to begin leave, and
(c) if required by the employer, be accompanied by a medical practitioner's or nurse practitioner's certificate stating the expected or actual birth date or the date the pregnancy terminated or stating the reasons for requesting additional leave under subsection (3).
(5) A request for a shorter period under subsection (1) (b) (i) must
(a) be given in writing to the employer at least one week before the date the employee proposes to return to work, and
(b) if required by the employer, be accompanied by a medical practitioner's or nurse practitioner's certificate stating the employee is able to resume work.
This leave is granted to pregnant employees. Pregnancy leave is available to all pregnant employees, regardless of the length of their employment. The pregnancy leave of absence is without pay.
If the birth is delayed beyond the expected date, this has no effect on the length of the pregnancy leave unless the period granted would exceed 17 weeks.
In addition to the leave granted under s.50(1), an employee can apply for an additional six weeks leave under s.50(3), where appropriate.
The employee may request, and the employer may grant, a longer period of leave under this Part. A leave granted in excess of the required minimum does not relieve employers of their obligations under s.54 of the Act.
Section 51 establishes additional statutory rights to Parental Leave for a birth mother, a birth father and adoptive parents.
An employee is entitled to up to 17 weeks leave of absence without pay, which may begin at any time up to 11 weeks prior to the expected date of delivery. The employee is entitled to at least six consecutive weeks after the actual date of birth, or a shorter period if requested by the employee. See ss.50(4) and (5) for further information on requesting a leave.
If an employee does not request leave before the birth of a child or the termination of a pregnancy, the employee is entitled to six consecutive weeks of leave without pay. Also see s.50(3).
If an employee is unable to return to work after the end of a leave taken under subsections (1) and (2) for reasons related to the birth of a child or the termination of a pregnancy, she is entitled to a further six consecutive weeks of leave.
Subsections (4) & (5)
Although the Act says that a request for leave must be in writing, the courts and the Employment Standards Tribunal have clearly stated that failure to do so does not take away the employee's right to leave under this Part. The Act is benefits-conferring legislation. One of the purposes of the Act set out in s. 2(f) is "to contribute in assisting employees to meet work and family obligations."
These decisions have clearly stated that it would be unjust to deny such a fundamental and important benefit such as pregnancy leave to an employee because of her failure to fulfill the technical and formal requirement to put her request in writing.
Employees are encouraged to provide notice in writing to their employers in the interests of encouraging open communication between employers and employees and promoting fair treatment of all parties. Employers may ask for a medical practitioner’s or nurse practitioner’s certificate confirming the expected birth date, the date the pregnancy terminated or the reasons for requesting additional leave under subsection (3).
The period of leave is determined by the employee not the employer. If an employee meets the requirements set out in the Act, the employer must grant the leave on the dates requested.
The proposed leave cannot begin earlier than 11 weeks before the expected date of birth. An employee can elect to begin her leave on any date from this date up to the actual date of birth.
Changing pregnancy leave
Once an employee has begun pregnancy leave, the Act only gives her the right to change the length of her leave under the following circumstances:
- The employee may reduce her leave to return to work within 6 weeks after the birth has occurred. Under s.50(5), an employee who wishes to return to work as soon as possible after a birth may do so by informing her employer, in writing, at least one week before the date the employee proposes to return. If the employer so requests, the employee may be required to provide a medical practitioner’s or nurse practitioner's certificate stating the employee is able to return to work. Her date of return cannot be earlier than one week after the written request is submitted to her employer.
- The employee may extend her leave for reasons related to a birth or the termination of pregnancy. If an employee is unable, for reasons associated with a birth or termination of a pregnancy, to return to work at the end of her pregnancy leave, she is entitled under s.50(3) to request up to 6 weeks of additional pregnancy leave. She can submit one or more requests, but the total of the additional time requested cannot be more than 6 weeks. Unless requested by the employer, the employee does not have to provide a medical certificate.
- The employee does not have to be physically unfit to request an extension. She merely has to be unable to return to work “for reasons related to the birth or the termination of the pregnancy.” The words “relating to the birth” cover all aspects of giving birth or caring for a new baby, including physical, psychological, and emotional problems encountered by the baby or the mother. The words “related to the termination of the pregnancy” cover all aspects of any loss or complications.
Apart from the rights presented in ss.50(2) and (3) above, Part 6 does not give an employee the right to change the length of her maternity leave on her own, once the leave has commenced.
If the employee wants to return earlier, the employer and employee are encouraged to reach an agreement. This agreement should meet the employee's needs and also allow the employer to accommodate business needs and to treat the employee's temporary replacement fairly.
Similarly, if an employee originally requested a shorter pregnancy leave and decides after the baby arrives that she would like to take up to the 17 weeks permitted by the Act, the parties are encouraged to reach a mutual agreement.
Terms and conditions of employment protected
Section 54 provides that an employer cannot terminate an employee or change a condition of employment without the employee's written consent as a result of a leave under this Part. See also s. 56 for an explanation of the effects of leave under this Part on employment and benefit payments. If the employer's business operations have been suspended or discontinued at the time the employee's leave ends, the employer must comply with s.54(2) when operations resume.
In the event of a contravention under this Part of the Act, the director may order a remedy in a determination under s.79(2). The determination will include an escalating monetary penalty, subject to s.98.
Employees covered by a collective agreement
Under the provisions of s.3, parties to a collective agreement are prohibited from giving up the specific employment protection provided in Part 6. Employers, employees and unions may not negotiate terms and conditions that do not meet the standards set out in this Part of the Act, or Part 6 will be deemed to be incorporated into the collective agreement.
Under s.3(7) of the Act, where there is a collective agreement, the enforcement of matters relating to Part 6 is through the grievance procedure, not through the enforcement provisions of the Act.
Employment Standards Tribunal Decisions
Capable Enterprises Ltd. (C.O.B Christopher Robin School) BCEST #D33/98
Krazy Willy’s Buy & Sell Ltd., BCEST #D473/00
Related sections of the Act or Regulation
- s.3, Scope of this Act
- s.51, Parental Leave
- s.54, Duties of Employer
- s.79, Determinations and Consequences
Director of Employment Standards and Stanley K. Blake  B.C.J. No. 555