Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations
EMPLOYMENT STANDARDS ACT - PART 6 - LEAVES AND JURY DUTY
ESA Section 52.4 – Leave respecting death of child
This section explains the circumstances in which an employee is entitled to take unpaid leave and the length of time allowed for the leave.
52.4 (1) If a child of an employee dies and the employee requests leave under this section, the employee is entitled to unpaid leave for a period of up to 104 weeks.
(2) If an employee is charged with a crime that resulted in the death of the employee's child, the employee is not entitled, or, if already on leave, is no longer entitled, to leave under this section.
(3) A leave under subsection (1) must be taken during the period that starts
(a) on the date the child dies, or
(b) on the date the child is found dead, in the case of the child disappearing before the child dies,
and ends on the date that is 105 weeks after the date referred to in paragraph (a) or (b), as applicable.
(4) A leave under subsection (1) 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.
(5) Despite subsection (3), a leave under subsection (1) ends on the earlier of the following dates, if any apply:
(a) the date the employee is charged with a crime that resulted in the death of the child;
(b) the date that is the last day of the last unit of time in respect of which the employer consents under subsection (4) (b).
(6) If requested by the employer, the employee must, as soon as practicable, provide to the employer reasonably sufficient proof that the employee's child is dead.
This leave is granted to employees whose child dies. If an employee who is the parent of the child is charged in connection with the child’s death, that employee is not entitled to the leave, or no longer entitled to remain on leave.
An employee whose child dies is entitled to up to 104 weeks (approx. two years) leave of absence from work. A parent may take leave in different units of time, with the employer’s consent.
The leave period starts as of the date the child dies, or on the date that a child who has disappeared is found dead, and ends 104 weeks (approx. two years) after that date. The leave can end earlier as follows:
- The employee is charged with a crime in relation to the child’s death;
- 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 proof that the child is dead.
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.52.3, Leave respecting disappearance of child
- s.54, Duties of Employer
- s.79, Determinations and Consequences