Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations
EMPLOYMENT STANDARDS ACT - PART 6 - LEAVES AND JURY DUTY
ESA Section 51 – Parental leave
This section explains who is entitled to parental leave, the length of the leave and how the employee must request the leave.
51. (1) An employee who requests parental leave under this section is entitled to,
(a) for a parent who takes leave under section 50 in relation to the birth of the child or children with respect to whom the parental leave is to be taken, up to 35 consecutive weeks of unpaid leave beginning immediately after the end of the leave taken under section 50 unless the employer and employee agree otherwise,
(b) for a parent, other than an adopting parent who does not take leave under section 50 in relation to the birth of the child or children with respect to whom the parental leave is to be taken, up to 37 consecutive weeks of unpaid leave beginning after the child's birth and within 52 weeks after that event,
(c) [Repealed 2011-25-327(c).]
(d) for an adopting parent, up to 37 consecutive weeks of unpaid leave beginning within 52 weeks after the child is placed with the parent.
(2) If the child has a physical, psychological or emotional condition requiring an additional period of parental care, the employee is entitled to up to an additional 5 consecutive weeks of unpaid leave, beginning immediately after the end of the leave taken under subsection (1).
(3) A request for leave must
(a) be given in writing to the employer,
(b) if the request is for leave under subsection (1) (a), (b) or (c), be given to the employer at least 4 weeks before the employee proposes to begin leave, and
(c) if required by the employer, be accompanied by a medical practitioner's certificate or other evidence of the employee's entitlement to leave.
(4) An employee's combined entitlement to leave under section 50 and this section is limited to 52 weeks plus any additional leave the employee is entitled to under section 50 (3) or subsection (2) of this section.
New parents, both mothers and fathers, or adopting, are entitled to leaves of absence without pay to care for newborn or newly-adopted children. The right to parental leave under this Part is available to all eligible employees regardless of how long they have been employed.
An employee is entitled to apply for parental leave under this Part, providing the employee is either the:
- Mother or father of an expected newborn child, or,
- Adopting parent of a child placed or about to be placed with the parent for the first time
One period of parental leave is available for each parent. Both parents are entitled to take the full leave allowed under this section. All leaves must be commenced within 52 weeks of the child's birth.
In the case of multiple births, or children being placed with adoptive parents at the same time, only one leave under this Part is allowed. A surrogate mother and a foster parent are not entitled to parental leave under this Part. A surrogate mother is entitled to pregnancy leave under s.50 of the Act.
A request for parental leave is separate from a request for pregnancy leave. The two notices can be submitted together, but the birth mother should make it clear she is requesting the two leaves. Employees are encouraged to give as much notice as possible.
The duration of parental leave under this Part is as follows:
If pregnancy leave under s.50 of the Act is taken:
- Up to 35 consecutive weeks in duration
- Parental leave must begin immediately following the end of pregnancy leave unless the employee and employer agree otherwise.
If pregnancy leave under s.50 of the Act is not taken:
- Up to 37 consecutive weeks in duration
- Parental leave to begin any time between the child’s birth and 52 weeks after the event
- Up to 37 consecutive weeks in duration
- Parental leave to begin any time between the child’s birth and 52 weeks after the event.
- Up to 37 consecutive weeks in duration
- Parental leave to begin within 52 weeks after the child is placed with the parent.
An adopting parent may be the same-sex partner of an adopting parent or birth mother.
A child who is still in hospital or in a foster home is not considered to be placed with the parent, even though the parent may have custody. If a parent adopts a foster child, the entitlement to parental leave begins on the date the adoption becomes effective.
If a child, either natural or adopted, suffers some physical, psychological, or emotional conditions, both parents of the child may apply for up to 5 consecutive additional weeks of unpaid leave, to be taken immediately after the end of their parental leaves.
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 parental leave to an employee because of a failure to fulfill the technical and formal requirement to put the request in writing.
Employees are encouraged to provide notice in writing to their employers in the interests of furthering 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 employee’s entitlement to the leave. In the case of a request for additional leave, the employer may ask for a certificate confirming the need for it. This 5-week additional consecutive leave is only available as an extension of parental leave.
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.
A birth mother has a basic entitlement to 17 weeks of pregnancy leave under s.50(1). Depending on whether or not a birth mother takes pregnancy leave, parental leave is either for 35 or 37 weeks. The 52 week maximum reflects the situation where a birth mother takes the maximum “normal” pregnancy leave of 17 weeks and the maximum parental leave of 35 weeks. This 52-week leave can be extended for special circumstances as follows:
- additional 6 weeks under s.50(3) Pregnancy leave; and
- additional 5 weeks under s.51(2) Parental leave
Extending parental leave does not reduce entitlement to pregnancy leave and vice versa.
Parental leave ends at the expiry of the statutory entitlement or earlier if a child is no longer under the legal care of the parent on leave.
- A birth mother is on 35 consecutive weeks of unpaid parental leave. The child is placed for adoption. The parental leave ends upon the placement of the child for adoption as the birth mother is no longer caring for the child.
- A birth father is on 37 consecutive weeks of unpaid parental leave. The child dies. The parental leave ends upon the death of the child as the birth father is no longer caring for the child. The birth father is entitled to bereavement leave. Any other additional leave is at the employer's discretion.
Employees may not change the duration of parental leave without the employer's agreement once leave has commenced. The director has no authority to require an employer to return an employee to the job before the leave expires. Any such change must be by agreement with the employer.
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 pursuant to Section 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 sections of the Act or Regulation
- s.3, Scope of this Act
- s.50, Pregnancy Leave
- s.54, Duties of Employer
- s.56, Employment deemed continuous while employee on leave or jury duty
- s.57, Entitlement to annual vacation
- s.58, Vacation pay
- s.79, Determinations and consequences