Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations
EMPLOYMENT STANDARDS ACT - PART 6 - LEAVES AND JURY DUTY
ESA Section 52 – Family responsibility leave
This section specifies which persons qualify as "a child in the employee's care" or "immediate family" in the Act and under what circumstances an employee qualifies for up to 5 days of leave under this section.
52. An employee is entitled to up to 5 days of unpaid leave during each employment year to meet responsibilities related to
(a) the care, health or education of a child in the employee's care, or
(b) the care or health of any other member of the employee's immediate family.
Family responsibility leave is an employee-initiated unpaid leave of up to 5 days in an employee’s employment year, based on their starting date. This leave is designed to help employees deal with family problems that conflict with job responsibilities. This leave is a statutory entitlement, not something that may or may not be granted at the discretion of the employer.
Family responsibility leave does not carry over from year to year if it is not used during the employment year.
Employers should record the absence as leave without pay and keep a record of the absence.
"A child in the employee's care" means a child under the age of nineteen. Parents are not entitled to family responsibility leave to attend to education-related issues of their children after they reach the age of nineteen.
Under s.1 of the Act, “immediate family” 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.
Duration of leave
Employees are entitled to request up to 5 days off, to be taken at their discretion. Any time taken off on any day (even one hour) qualifies as one day for purposes of this section, unless the employer and employee agree otherwise. (See definition of “day” in s.1 of the Act)
Reason for leave
The request does not need to be made because of a crisis or emergency. It must be related to the care or health, and in the case of a child, education, of a member of the employee’s immediate family. An employee is encouraged to give reasonable notice of any request for leave to allow the employer to accommodate the absence. Employers are entitled to reasonable proof, after the event, that the request for a leave was valid.
- Thomas is notified by school authorities that his child has been injured in a school yard accident and taken to hospital. Family responsibility leave should be allowed.
- Carin has an appointment to meet with a school counsellor to discuss behaviour issues. The appointment is during her scheduled working hours. Family responsibility leave should be allowed.
- Fisher has to accompany his elderly, disabled parent to attend a medical appointment. Family responsibility leave should be allowed.
- Neil wants to accompany his child on a school recreational activity excursion. Since this activity is not related to the care, health or education of the child, it does not justify family responsibility leave.
- Bob wants two days family responsibility leave to go to Edmonton to help his son pack up his belongings after his second year at university and drive him home to Terrace, where he will live with his parents and work for the summer before going back to Edmonton to continue his studies. Since Bob's son is over the age of nineteen, this activity is not related to the education of a child in the employee's care and does not justify family responsibility leave.
Vacation entitlement after leave of absence
Kate commences work on June 1, 2002. Due to family responsibilities, in December, 2002, she requests a two-month unpaid leave of absence to attend to a sick parent. The employer approves the unpaid leave. Kate returns to work in February 2003.
Kate is entitled to 2 weeks’ paid vacation effective June 1, 2003 regardless of the fact that she has taken a 2-month leave of absence approved by the employer. See s.56(1)(a) for a further discussion on vacation pay calculation and entitlement after a leave of absence.
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.
Employment Standards Tribunal Decisions
John Dale and Fiona Dale dba Windsor Holdings, BC EST #D495/97
West Fraser Mills Ltd. (Eurocan Pulp & Paper Co.) v. Communications, Energy and Paperworks Union of Canada, Local 298 2008 BCCA 403
Related sections of the Act or Regulation
- s.1, Definition “conditions of employment”
- s.1, Definition “day”
- s.1, Definition “immediate family”
- s.3, Scope of the Act
- s.54, Duties of employer
- s.56, Employment deemed continuous while employee on leave or jury duty
- s.79(2), Determinations and consequences