Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations
EMPLOYMENT STANDARDS ACT - PART 6 - LEAVES AND JURY DUTY
ESA Section 56 – Employment deemed continuous while employee on leave or jury duty
This section explains how an employee’s entitlements are affected as a result of being on leave or serving on jury duty.
56. (1) The services of an employee who is on leave under this Part or is attending court as a juror are deemed to be continuous for the purposes of
(a) calculating annual vacation entitlement and entitlement under sections 63 and 64, and
(b) any pension, medical or other plan beneficial to the employee.
(2) In the following circumstances, the employer must continue to make payments to a pension, medical or other plan beneficial to an employee as though the employee were not on leave or attending court as a juror:
(a) if the employer pays the total cost of the plan;
(b) if both the employer and the employee pay the cost of the plan and the employee chooses to continue to pay his or her share of the cost.
(3) The employee is entitled to all increases in wages and benefits the employee would have been entitled to had the leave not been taken or the attendance as a juror not been required.
(4) Subsection (1) does not apply if the employee has, without the employer's consent, taken a longer leave than is allowed under this Part.
(5) Subsection (2) does not apply to an employee on leave under section 52.2.
Employees absent due to leave or jury duty under this Part, are considered to have continuous service during their absence for the purpose of calculating entitlements to vacation, vacation pay, and notice of termination of employment. Employees must be credited with service as though service was continuous throughout the period of absence.
Any leave under Part 6, including jury duty, is unpaid leave. However, as a result of an agreement between the employer and the employee or where there are terms in an employee’s contract of employment, leave may be with pay.
Employees should not be in a better or worse position because of having taken a leave or being placed on jury duty.
Vacation and Vacation Pay
The service of an employee on leave or jury duty under this Part is considered continuous service for the period of absence for purposes of calculating vacation entitlement.
The provisions under this Part are the minimum requirements that an employee on leave or jury duty are entitled to under the Act. However, if the employment contract between the parties provides a greater benefit, the Director will enforce any such entitlement.
If vacation entitlement, under a contract of employment, is based on paid weeks of vacation, then the vacation time and pay would remain the same. If the vacation pay is based on a percentage of earnings, then the employee is still entitled to the vacation time, but the pay may reflect the reduced earnings, based on actual wages earned in the vacation year.
An employer who has agreed to grant vacation or vacation pay in excess of minimum standards cannot reduce vacation or vacation pay because an employee is on leave or jury duty under this Part.
If employees pass their fifth anniversary while on leave or jury duty they earn the right to an additional week of vacation as required by s.57(1) of the Act.
An employee on leave or jury duty is not usually entitled to statutory holiday pay. While on leave or jury duty, an employee is absent without pay. As a result, days on unpaid leave are not included when determining if an employee is eligible for statutory holiday pay under s.45 of the Act.
However, if the statutory holiday falls on a day when they are on leave or jury duty and an employee is eligible for the statutory holiday, in accordance with s.45, they must be paid for this day regardless of the fact that they are on leave or jury duty. Similarly, if the employee’s contract of employment provides for statutory holiday pay while on leave or jury duty, then the employee is entitled to that holiday with pay.
Compensation for Length of Service (Section 63) and Group Termination (s.64)
Any leave or jury duty under this Part is considered to be continuous service for purposes of calculating present and future entitlements to compensation for length of service and where 50 or more employees are affected, group termination.
An employer must not terminate an employee on leave or jury duty permitted by this Part, for reasons related to the leave.
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 issued under s.79(2) will include an escalating monetary penalty, subject to s.98.
Any pension, medical or benefit plan that an employee is entitled to must not be affected because a leave is taken. The employee should be treated in the same manner as if they have not taken leave or attended as a juror.
Bill has been employed for 6 months is off work on parental leave. Employees are eligible to receive dental plan coverage after one year of employment. The time off work on parental leave counts toward establishing eligibility for the dental plan.
Benefit Plan Contributions
If employees normally contribute to a plan, they must be given the option of continuing normal contributions while on leave. If the employee elects to continue contributions, the employer must maintain continuous coverage under that plan. If the employee chooses not to contribute, the employer is not required to maintain coverage while the employee is on leave, but must reinstate the coverage without any waiting or qualifying period when the employee returns to work.
Premiums to benefit plans for employees on leave should be calculated and paid in the same manner as though the employee had continued working. An employer cannot reduce the level of coverage or benefits because an employee is on leave or jury duty.
An employee who resigns during, or at the end of a leave or jury duty under this Part, is entitled to all benefits that accrue during the period of absence up to the employee's termination date.
This subsection does not apply to employees on reservists' leave.
If a contract of employment provides for sick leave, this entitlement continues while an employee is on leave, or jury duty.
If wages and benefits increase while employees are on leave under this Part, the employees should receive these increases when they return.
The requirements of this section extend beyond simply allowing the employee to return to work without the benefit of terms and conditions that have been improved while they were on leave.
Where an employee has taken a leave longer than allowed under this Part of the Act, without the employer’s permission, subsection (1), above, does not apply. If an employer and employee have agreed to terms that exceed the minimum standards under this Part of the Act, the Director will enforce any such entitlements.
An employer of an employee who is on reservists' leave is not required to maintain the employee's coverage under benefit plans or to give the employee the option of continuing to contribute to benefit plans while on leave.
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.1, Definition, “conditions of employment”
- s.1, Definition, “temporary layoff”
- s.1, Definition, “termination of employment”
- s.1, Definition, “termination pay”
- s.3, Scope of the Act (specifically, subsection 6 – collective agreement)
- s.50, Pregnancy leave
- s.51, Parental leave
- s.52, Family Responsibility Leave
- s.52.1, Compassionate Care Leave
- s.53, Bereavement leave
- s.54, Duties of employer
- s.55, Jury Duty
- s.57, Entitlement to annual vacation
- s.58, Vacation pay
- s.63, Liability resulting from length of service
- s.64, Group terminations
- s.67, Rules about notice
- s.79, Determinations and consequences
- s.126(4)(b), Evidence and burden of proof