Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations

EMPLOYMENT STANDARDS ACT - PART 6 - LEAVES AND JURY DUTY

ESA Section 51 – Parental leave


Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information


Summary

This section explains who is entitled to parental leave, the length of the leave and how the employee must request the leave. Parental leave entitlements increased on May 17, 2018. This section also explains how the increased entitlements affect parents who had requested parental leave or were on parental leave as of May 17, 2018. 


Text of Legislation

51. (1) An employee who requests leave under paragraph (a), (b), or (d) of this subsection 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 61 consecutive weeks of unpaid leave, which must begin, unless the employer and the employee agree otherwise, immediately after the end of the leave taken under section 50,

(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 62 consecutive weeks of unpaid leave, which must begin within 78 weeks after the birth of the child or children,

(c) [Repealed 2011-25-327(c).]

(d) for an adopting parent, up to 62 consecutive weeks of unpaid leave, which must begin within 78 weeks after the child or children are placed with the parent.

(2) If the child has a physical, psychological or emotional condition requiring an additional period of parental care, an employee who requests leave under this subsection 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) or (b) , 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 78 weeks plus any additional leave the employee is entitled to under section 50 (3) or subsection (2) of this section.


Policy Interpretation

Birth parents and adopting parents 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:

  • Parent 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. A birth mother who takes pregnancy leave must commence her 61 week parental leave at the end of her pregnancy leave unless she and her employer agree to a different date. Other parents are entitled to 62 weeks of consecutive leave which must be commenced within 78 weeks of the child's birth.

An adopting parent is entitled to 62 weeks of leave, which must be commenced within 78 weeks of the date the child is placed with the parent.

In the case of multiple births, or more than one child 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 section. A surrogate mother is entitled to pregnancy leave under s.50 of the Act.

Subsection (1)

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.
The duration of parental leave under this Part is as follows:

Birth mother

If pregnancy leave under s.50 of the Act is taken:

  • Up to 61 consecutive weeks
  • 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 62 consecutive weeks
  • Parental leave may begin any time within 78 weeks after the child’s/children’s birth

Parents other than adopting parents

  • Up to 62 consecutive weeks
  • Parental leave may begin any time within 78 weeks after the child’s/children’s birth

Adopting parents

  • Up to 62 consecutive weeks
  • Parental leave may begin any time within 78 weeks after the child or children are placed with the parent.

An adopting parent may be the same-sex partner of an adopting parent or birth mother or father.

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.

Subsection (2)

If a child, either natural or adopted, suffers some physical, psychological, or emotional difficulty, 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.

Subsection (3)

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.

Subsection (4)

A birth mother has a basic entitlement to 17 weeks of pregnancy leave under s.50(1). If a birth mother takes the maximum pregnancy leave of 17 weeks followed by parental leave of 61 weeks, her combined entitlement is 78 weeks, which can be extended in 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.

Examples:

  • A birth mother is on 61 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 father is on 62 consecutive weeks of unpaid parental leave. The child dies. The parental leave ends upon the death of the child as the father is no longer caring for the child. The father is entitled to up to104 weeks’ leave respecting the death of a child.  (See section 52.4)

The Act does not have specific provisions addressing changes to the duration of parental leave once leave has commenced.  If an employee wishes to change the length of a leave 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

6  (1) In this section:

"current section 51" means section 51 of the Employment Standards Act as it reads on the date this section comes into force;

"eligible employee" means an employee who is

(a) a parent of a child or children born on or after December 3, 2017, or

(b) an adopting parent of a child or children placed with the adopting parent on or after December 3, 2017;

"previous section 51" means section 51 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 has requested leave under subsection (1) of previous section 51 in relation to the birth or adoption of the child or children referred to in the definition of "eligible employee", but has not yet begun the leave, current section 51 applies with respect to the leave.

(3) If, on the date this section comes into force, an eligible employee described in paragraph (a) of the definition of "eligible employee" is on leave under subsection (1) (a) of previous section 51 in relation to the birth of the child or children referred to in paragraph (a) of the definition of "eligible employee", current section 51 applies with respect to the leave, except that the eligible employee is entitled to up to 61 consecutive weeks of leave as set out in subsection (1) (a) of current section 51, minus the period of time already taken under subsection (1) (a) of previous section 51.

(4) If, on the date this section comes into force, an eligible employee is on leave under subsection (1) (b) or (d) of previous section 51 in relation to the birth or adoption of the child or children referred to in paragraph (a) or (b) of the definition of "eligible employee", current section 51 applies with respect to the leave, except that the eligible employee is entitled to up to 62 consecutive weeks of leave, as set out in subsection (1) (b) or (d), as applicable, of current section 51, minus the period of time already taken under subsection (1) (b) or (d), as applicable, of previous section 51.

Policy Interpretation – Transition Provisions

If, as of May 17, 2018, an employee has requested parental leave for a child who was born on or after December 3, 2017, but has not yet begun the leave, the birth mother is entitled to 61 weeks of parental leave and other parents are entitled to 62 weeks of parental leave.

If an employee who is the birth mother of a child born on or after December 3, 2017, and who took pregnancy leave, is on parental leave as of May 17, 2018, she is entitled to take up to 61 weeks of leave, minus the amount of time already taken as of May 17, 2018.

If, as of May 17, 2018, an employee who did not take pregnancy leave is a parent of a child born or placed with an adopting family on or after December 3, 2017 and is on parental leave, the employee is entitled to take up to 62 consecutive weeks of leave, minus the amount of time already taken 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 pursuant to Section 79(2). The determination will include an escalating monetary penalty, subject to s. 98.

Employees covered by a 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

Other

See Employment Standards Factsheets

Factsheets

Leaves and Jury Duty

Collective Agreements and the Employment Standards Act