COVID-19-Related Leave - Act Part 6, Section 52.12


Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information


Summary

This section explains under what circumstances an employee qualifies for leave related to the COVID-19 pandemic. These provisions are in force from January 27, 2020 when the first presumptive case was confirmed in B.C. They are temporary measures that will be repealed when the COVID-19 pandemic is over.


Text of Legislation

52.12 (1) In this section, "eligible person", with respect to an employee, means any of the following:

(a) a child who is under the day-to-day care and control of the employee by way of agreement or court order or because the employee is the child's parent or guardian;

(b) a person who

(i) is 19 years of age or older,

(ii) is unable, because of illness, disability or another reason, to obtain the necessities of life or withdraw from the charge of the person's parent or former guardian, and

(iii) is under the day-to-day care and control of the employee, who is the person's parent or former guardian;

(c) a prescribed person.

(2) An employee who requests leave under this section is entitled to unpaid leave for the period described in subsection (3) if, in relation to COVID-19, any of the following applies:

(a) the employee has been diagnosed with COVID-19 and is acting in accordance with

(i) instructions or an order of a medical health officer, or

(ii) advice of a medical practitioner, nurse practitioner or registered nurse;

(b) the employee is in quarantine or self-isolation in accordance with

(i) an order of the provincial health officer,

(ii) an order made under the Quarantine Act (Canada),

(iii) guidelines of the British Columbia Centre for Disease Control, or

(iv) guidelines of the Public Health Agency of Canada;

(c) the employer, due to the employer's concern about the employee's exposure to others, has directed the employee not to work;

(d) the employee is providing care to an eligible person, including because of the closure of a school or daycare or similar facility;

(e) the employee is outside the province and cannot return to British Columbia because of travel or border restrictions;

(f) a prescribed situation exists relating to the employee.

(3) An employee is entitled to leave under this section for as long as a circumstance described in subsection (2) applies to the employee.

(4) If requested by the employer, the employee must, as soon as practicable, provide to the employer reasonably sufficient proof that a circumstance described in subsection (2) applies to the employee.

(5) An employer must not request, and an employee is not required to provide, a note from a medical practitioner, nurse practitioner or registered nurse for the purposes of subsection (4).

(6) This section may be repealed by order of the Lieutenant Governor in Council.

Transitional Provision

Transition – rights and obligations retroactive to January 27, 2020

3  (1) The employee may request and is entitled to leave under section 52.12 if, on the date section 52.12 of the Employment Standards Act came into force,

(a) an employee was employed by an employer,

(b) a circumstance described in section 52.12 (2) applied to the employee, and

(c) that circumstance began before section 52.12 came into force but on or after January 27, 2020.

(2) If an employer terminated an employee on or after January 27, 2020 but before section 52.12 of the Employment Standards Act came into force, due to a circumstance described in section 52.12 (2) applying to the employee, the employer must offer the employee re-employment in the same or a comparable position and, if the employee is re-employed, the employee's absence from employment following the termination is deemed to be a leave under section 52.12.

(3) An employer's obligation under subsection (2) of this section does not apply if the situation that applied to the employee is one that was prescribed under section 52.12 (2) (f) of the Employment Standards Act after that section came into force.

(4) An employer's obligation under subsection (2) of this section does not apply in connection with a person who was prescribed as an eligible person under section 52.12 (1) (c) of the Employment Standards Act after that section came into force.


Policy Interpretation

Section 52.12(1)

This subsection lists the eligible family members referred to in subsection (2)(d), on whose behalf employees are entitled to take this leave. It includes a child that the employee cares for as their parent or guardian, or through an agreement or court order. It also includes an adult child / foster child of an employee if the employee is responsible for their day-to-day care. It does not include parents, spouses or other relatives of employees.

Section 52.12(2)

This subsection lists the various circumstances in which an employee is entitled to take a leave from work.

(a) the employee has:

  • been diagnosed with COVID-19; and
  • is acting under instructions from their doctor, a nurse or other medical health officer.

(b) the employee is in quarantine or self-isolation in accordance with orders or guidelines from various public agencies. See WorkSafeBC in addition to the following agencies:  

Bonnie Henry is B.C.’s provincial health officer. She has issued an order requiring travellers who entered or returned to B.C. after March 12 to self-isolate for 14 days. The order contains provisions for when you may leave your home. The order contains different provisions for essential workers.

On March 18, 2020 the federal government announced restrictions on travellers entering Canada, pursuant to the Quarantine Act. This includes measures like restricting traffic at the Canada-U.S.A. border and various airports, screening travellers entering and exiting Canada and refusing entry. As of March 26, 2020, all travellers returning to Canada (excluding essential workers) are subject to a mandatory 14-day isolation period.

Find information on what to do if you are sick and for employers and businesses

(c) the employer asks the employee to stay home from work due to concerns about the employee’s exposure to others.

(d) the employee is providing care to an eligible person as set out in subsection (1) above, including because of the closure of a school or daycare.

(e) the employee is outside the province and cannot return because of travel or border restrictions.

Section 52.12(3)

The employee is entitled to remain on leave as long as the circumstances referred to in subsection (2) continue to apply.

Section 52.12(4)

If the employer asks, the employee must provide enough of an explanation to reasonably show that the employee’s leave falls within the circumstances set out in subsection (2).

Section 52.12(5)

An employer cannot request a doctor’s note and an employee is not required to provide one.

Transitional provisions

Section 52.12 came into force on March 23, 2020. It applies retroactively to circumstances that began on or after January 27, 2020, the date of B.C.’s first presumptive case of COVID-19.

If an employer terminated an employee between January 27, 2020 and March 23, 2020, the employer must offer re-instatement in the same or a comparable position. If the employee is re-employed, the employee’s absence after the date of the termination will be deemed a leave under this section.

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.


Related Information

Related sections of the Act or Regulation

ESA

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