Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations

EMPLOYMENT STANDARDS ACT - PART 6 - LEAVES AND JURY DUTY

ESA Section 50 – Pregnancy leave


Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information


Summary

This section explains a pregnant employee’s entitlement to unpaid leave and the length of the leave. Pregnancy leave entitlements increased on May 17, 2018. This section also explains how the increased entitlements affect birth mothers who had requested pregnancy leave or were on pregnancy leave as of May 17, 2018. 


Text of Legislation

50. (1) A pregnant employee who requests leave under this subsection is entitled to up to 17 consecutive weeks of unpaid leave, which must be taken during the period that begins

(a) no earlier than 13 weeks before the expected birth date, and

(b) no later than the actual birth date

 and ends no later than 17 weeks after the leave begins.

(1.1) An employee who requests leave under this subsection after giving birth to a child is entitled to up to 17 consecutive weeks of unpaid leave, which must be taken during the period that begins on the date of the birth and ends no later than 17 weeks after that date.

(2) An employee who requests leave under this subsection after the termination of the employee’s pregnancy is entitled to up to 6 consecutive weeks of unpaid leave, which must be taken during the period that begins on the date of the termination of the pregnancy and ends no later than 6 weeks after that date.

(3) An employee who requests leave under this subsection 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, the employee is unable to return to work when the employee leave ends under subsection (1), (1.1) 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) If an employee on leave under subsection (1) or (1.1) proposes to return to work earlier than 6 weeks after giving birth to the child, the employer may require the employee to give the employer a medical practitioner’s or nurse practitioner’s certificate stating the employee is able to resume work.


Policy Interpretation

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 is without pay.

If the employee gives birth after the expected due date, the length of the pregnancy leave is not extended.

In addition to the leave granted under s.50(1), (1.1), or (2), 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 the employer of its obligations under s.54 of the Act.

Section 51 provides parents with additional statutory rights to Parental Leave.

Subsection (1)

An employee is entitled to up to 17 weeks of leave without pay, which may begin at any time up to 13 weeks prior to the expected date of delivery.

Subsection (1.1)

An employee who requests leave after the birth of her child is entitled to up to 17 weeks of leave without  pay. The leave cannot begin before the date of the birth and ends 17 weeks after the date of birth.

Subsection (2)

An employee who requests leave after the termination of a pregnancy is entitled to six consecutive weeks of leave without pay. Also see s.50(3). 

Subsection (3)

An employee who is unable to return to work after the end of a leave taken for reasons related to the birth of a child or the termination of a pregnancy is entitled to a further six consecutive weeks of leave.

Subsection (4)

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 13 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.

Subsection 5
 

Employers may ask for a medical practitioner’s or nurse practitioner’s certificate if an employee on leave proposes to return to work earlier than six weeks after giving birth.


Changing pregnancy leave

Once an employee has begun her pregnancy leave, she may wish to change the length of her leave.

  • If the employee wishes to return to work within 6 weeks after the birth has occurred, under s.50(5), the employer may  request that the employee provide a medical practitioner’s or nurse practitioner's certificate stating the employee is able to return to work.
  • The employee may extend her leave for reasons related to the birth or the termination of her pregnancy. \She may request up to 6 weeks of additional pregnancy leave under s.50(3). 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 difficulties encountered by the baby or the mother. The words “related to the termination of the pregnancy” cover all aspects of medical issues, including physical, emotional or psychological loss or complications.

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. Section 54 of the Act requires an employer to “give an employee who requests leave … the leave to which the employee is entitled.”

Transition Provisions – May 17, 2018

5  (1) In this section:

"current section 50" means section 50 of the Employment Standards Act as it reads on the date this section comes into force;

"eligible employee" means an employee who is pregnant with a child who has an expected birth date between 11 and 21 weeks after the date this section comes into force;

"previous section 50" means section 50 of the Employment Standards Act as it read on the date immediately before the date this section comes into force.

(2) If, on the date this section comes into force, an eligible employee who has not requested leave under subsection (1) of previous section 50 proposes to begin leave between 11 and 13 weeks before the expected birth date of the child,

(a) subsection (4) (b) of current section 50 does not apply to a request for that leave, and

(b) the eligible employee must give the written request for that leave to the employer as soon as practicable.

(3) If, on the date this section comes into force, an eligible employee

(a) has requested leave under subsection (1) of previous section 50 but has not yet begun the leave, and

(b) proposes to begin the leave between 11 and 13 weeks before the expected birth date of the child,

current section 50 applies with respect to the leave, except that the employee's request for leave under subsection (1) of previous section 50 is deemed to be a request for leave under subsection (1) of current section 50, made in compliance with subsection (4) (b) of current section 50.

(4) If, on the date this section comes into force, an employee is on leave under subsection (2) of previous section 50 in relation to the birth of the child, current section 50 applies with respect to the leave, except that the employee is entitled to up to 17 consecutive weeks of leave as set out in subsection (1.1) of current section 50, minus the period of time already taken under subsection (2) of previous section 50.


Policy Interpretation – Transition Provisions – May 17, 2018

If an employee who is pregnant and whose due date is between August 2, 2018 and October 11, 2018 has not yet requested leave as of May 17, 2018 but proposes to begin her leave between 11 and 13 weeks before the birth of the child, the requirement to make the request at least four weeks before the day the employee proposes to go on leave does not apply. Instead the eligible employee must give notice as soon as practicable.

If an employee who is pregnant and whose due date is between August 2, 2018 and October 11, 2018 has already requested leave as of May 17, 2018 but has not yet begun the leave, and proposes to begin the leave between 11 and 13 weeks before the birth of the child, the request is deemed to comply with the requirement in subsection 4(b) to give four weeks’ notice.

If, as of May 17, 2018 an employee is on a six-week leave because she requested leave after the birth of her child, she is entitled to a 17-week leave, minus the amount of time she has already been on leave as of May 17, 2018.

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

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

ESA

Other

See Employment Standards Factsheets

Factsheets

Leaves and Jury Duty

Collective Agreements and the Employment Standards Act

Court Decisions

Director of Employment Standards and Stanley K. Blake [1987] B.C.J. No. 555