Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations

EMPLOYMENT STANDARDS ACT - PART 6 - LEAVES AND JURY DUTY

ESA Section 52.1 – Compassionate Care Leave 


Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information


Summary

This section explains the circumstances in which an employee is entitled to take compassionate care leave, the length of the leave, and the definition of "immediate family". 


Text of Legislation

52.1 (1) In this section, "family member" means someone who is:

a) a member of an employee’s immediate family, and

b) any other individual who is a member of a prescribed class.

(2) An employee who requests leave under this section is entitled to up to 8 weeks of unpaid leave to provide care or support to a family member if a medical practitioner or nurse practitioner issues a certificate stating that the family member has a serious medical condition with a significant risk of death within 26 weeks, or such other period as may be prescribed, after

(a) the date the certificate is issued, or

(b) if the leave began before the date the certificate is issued, the date the leave began.

(3) The employee must give the employer a copy of the certificate as soon as practicable.

(4) An employee may begin a leave under this section no earlier than the first day of the week in which the period under subsection (2) begins.

(5) A leave under this section ends on the last day of the week in which the earlier of the following occurs:

(a) the family member dies;
(b) the expiration of 26 weeks or other prescribed period from the date the leave began.

(6) A leave taken under this section must be taken in units of one or more weeks.

(7) If an employee takes a leave under this section and the family member to whom subsection (2) applies does not die within the period referred to in that subsection, the employee may take a further leave after obtaining a new certificate in accordance with subsection (2), and subsections (3) to (6) apply to the further leave.


Policy Interpretation

All employees are entitled to up to 8 weeks of unpaid leave within a period of 26 weeks to care for a gravely ill family member. The right to compassionate care leave under this Part is available to all eligible employees regardless of how long they have been employed. The leave is a statutory entitlement, not something that may or may not be granted at the discretion of the employer.

An employee must, as soon as practicable, provide the employer with a certificate from a medical practitioner or nurse practitioner stating that the family member has a serious medical condition with a significant risk of death within 26 weeks.

If the employee takes leave under this Part and the family member does not die within the 26 week period, the employee may obtain a new certificate. This will entitle the employee to a further 8 weeks of leave within a subsequent 26 week period.

For the purposes of this section, the definition of "week" in section 1 of the Act says that a week starts on Sunday. So if an employee begins a leave in the middle of a week, and ends it in the middle of the following week, the employee will be deemed to have used up two weeks of leave. The 26 week period begins on the Sunday of the week in which the certificate is issued or the first leave is taken, whichever comes first.

Subsection (1)

"Family member" means a member of the employee's immediate family or a member of a prescribed class.

“Immediate family” is defined in section 1 of the Act. It means the spouse, child, parent, guardian, sibling, grandchild or grandparent of an employee, and any person who lives with an employee as a member of the employee's family. It includes common-law spouses, step-parents and step-children, and same-sex partners and their children as long as they live with the employee as a member of the employee's family.

The Compassionate Care Leave Regulation contains a list of individuals who are part of the prescribed class referred to in s. 52.1(b). They are as follows:

In relation to an employee:

  • a step-sibling;
  • an aunt or uncle;
  • a niece or nephew;
  • a current or former foster parent;
  • a current or former foster child;
  • a current or former ward;
  • a current or former guardian; or
  • the spouse of
  • a sibling or step-sibling;
  • a child or stepchild;
  • a grandparent;
  • a grandchild;
  • an aunt or uncle;
  • a niece or nephew;
  • a current or former foster child; or
  • a current or former guardian;

In relation to the employee’s spouse:

  • a parent or step-parent;
  • a sibling or step-sibling;
  • a child;
  • a grandparent;
  • a grandchild;
  • an aunt or uncle;
  • a niece or nephew;
  • a current or former foster parent; or
  • a current or former ward; and

Whether or not related to an employee by blood, adoption, marriage or common law partnership, an individual with a serious medical condition who is like a close relative to the employee.

Subsection (2)

An employee who requests leave is entitled to 8 weeks of unpaid leave within a period of 26 weeks. The legislation does not specify how the leave should be requested. There is no requirement for a request to be in writing, or for the employee to give the employer advance notice.

The employee must provide a certificate from a medical practitioner or nurse practitioner which states that the family member has a serious medical condition with a significant risk of death within 26 weeks.

The leave starts when the employee requests it, either before or after the certificate is issued.

The 26 week period starts either on the Sunday of the week when the certificate is issued, or if the employee requests leave before being able to obtain the certificate, the Sunday of the week when the leave begins.

Subsection (3)

The employee must give the employer a copy of the certificate as soon as practicable. This section contemplates that the need for a leave of this nature can arise suddenly and without warning, so the employee is not disentitled from taking the leave because of the lack of a certificate. The employee still must provide the certificate as soon as is reasonable under the circumstances.

Subsection (4)

Any leave taken by the employee will be considered to be part of the period of 26 weeks. The first leave will always be included in the 26 week period, even if the certificate is not produced until a later time. In that case, the eight weeks of leave and the 26 week period will start to run from the beginning of the week that the first leave occurs, instead of from the beginning of the week in which the certificate is issued.

Subsection (5)

A leave ends on the last day of the week in which the family member dies, or at the end of the 26 week period, whichever comes first.

If an employee has not used up 8 weeks of leave when the 26 week period ends, any unused leave entitlement lapses.

If the employee uses up 8 weeks of leave before the end of the 26 week period, the employer does not have to allow more leave within the time remaining in the period.

Subsection (6)

A leave in this section must be taken in units of one or more weeks. The employee is entitled to take the leave when it is needed, but if less than a week is taken at one time, it counts as one week under this section. If an employee takes a leave that uses up the end of one week and the beginning of the next, the employee will be considered to have used up two weeks of leave.

Subsection (7)

If the employee takes a leave and the family member does not die within the 26 week period, the employee is entitled to take up to another eight weeks of leave in a subsequent 26 week period upon obtaining a new certificate. The leave would be requested and taken under the same conditions as the first leave.

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 section 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.


Related Information

ESA

Other

Compassionate Care Leave Regulation

See Employment Standards Factsheets

Factsheets

Compassionate Care Leave

Collective Agreements and the Employment Standards Act