Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations
EMPLOYMENT STANDARDS ACT - PART 6 - LEAVES AND JURY DUTY
ESA Section 52.3 – Leave respecting the disappearance of a child
This section explains the circumstances in which an employee is entitled to take unpaid leave if their child disappears and the length of time allowed for the leave.
52.3 (1) In this section and section 52.4:
"child" means a person under 19 years of age;
"crime" means an offence under the Criminal Code other than an offence prescribed by the regulations made under section 209.4 (f) of the Canada Labour Code.
(2) If a child of an employee disappears and it is probable, in the circumstances, that the child's disappearance is a result of a crime, and the employee requests leave under this section, the employee is entitled to unpaid leave for a period of up to 52 weeks.
(3) If an employee is charged with a crime that resulted in the disappearance of the employee's child, the employee is not entitled, or, if already on leave, is no longer entitled, to leave under subsection (2).
(4) A leave under subsection (2) must be taken during the period that starts on the date the child disappears and ends on the date that is 53 weeks after the date the child disappears.
(5) A leave under subsection (2) may be taken by the employee in
(a) one unit of time, or
(b) more than one unit of time, with the employer's consent.
(6) Despite subsection (4), a leave under subsection (2) ends on the earliest of the following dates, if any apply:
(a) the date on which circumstances indicate it is no longer probable that the child's disappearance is a result of a crime;
(b) the date the employee is charged with a crime that resulted in the disappearance of the child;
(c) the date that is 14 days after the date on which the child is found alive;
(d) the date on which the child is found dead;
(e) the date that is the last day of the last unit of time in respect of which the employer consents under subsection (5) (b).
(7) If requested by the employer, the employee must, as soon as practicable, provide to the employer reasonably sufficient proof that the employee's child has disappeared in circumstances in which it is probable the disappearance is a result of a crime.
This leave is granted to employees whose child has gone missing in circumstances where it is likely the child’s disappearance is the result of a crime. If an employee who is the parent of the child is charged with the child’s disappearance, that employee is not entitled to the leave, or no longer entitled to remain on leave.
The employee may take leave in different units of time, with the employer’s consent.
The leave period starts as of the date the child disappears, and ends 53 weeks after that date. The leave can end earlier as follows:
- The date circumstances show it is no longer probable that the disappearance is the result of a crime;
- The employee is charged with a crime in relation to the child’s disappearance;
- Fourteen days after the child is found alive;
- The date the child is found dead (in which case the employee is entitled to leave respecting the death of a child under section 52.4); or
- The last day the employer consents if the employee has taken time off in different units of time.
The employer may request that the employee provide reasonable information that the child’s disappearance is probably the result of a crime. A crime means an offence under the Criminal Code.
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.
- s.3, Scope of this Act
- s.52.4, Leave respecting death of child
- s.54, Duties of Employer
- s.79, Determinations and Consequences