[co-author: Niall Rand, Student-at-Law]
On April 9, 2018, the British Columbia government introduced Bill 6, which seeks to amend the B.C. Employments Standards Act (ESA), to provide employees with more generous and flexible pregnancy, parental and compassionate care leaves. Bill 6 also creates new job-security protections for parents upon the death or crime-related disappearance of their child.
The changes to the ESA bring British Columbia in line with federal Employment Insurance maternity leave benefits and statutory leaves of absence in other jurisdictions
PREGNANCY AND PARENTAL LEAVE
The proposed amendments to section 50 of the ESA will allow birth mothers nearing the end of their pregnancy to begin pregnancy leave up to 13 weeks before their due date — 2 weeks earlier than previously allowed. The existing entitlement of 17 consecutive weeks of unpaid pregnancy leave remains unchanged for employees who request it before giving birth; while employees requesting leave after giving birth will see their leave entitlement increase from six to 17 weeks.
The proposed amendments also add additional safeguards for employees proposing to return to work earlier than six weeks after giving birth. Obtaining a certificate from a doctor or nurse practitioner is now mandatory, rather than at the request of the employer on a case-by-case basis.
Employees requesting parental leave under section 51 of the ESA will now be entitled to a longer period of leave. The proposed amendments to the ESA harmonize British Columbia’s leave period with the benefits afforded to new parents under the federal Employment Insurance Act. Birth mothers who choose to take pregnancy leave under section 50 of the ESA will now be entitled to up to 61 consecutive weeks of unpaid leave, in addition to their 17-week pregnancy leave. This new combined entitlement period of 78 weeks (18 months) is an increase from the previous maximum of 52 weeks (12 months). Non-birth parents, including the parents of adopted children, will also benefit from the proposed amendments. With a substantially increased entitlement of 62 consecutive weeks of unpaid leave, which may now be taken within 18 months of the child’s birth or adoption.
Both the pregnancy and parental leave changes will be applied retroactively once the amendments come into effect. As a result, employees who have requested, but have not begun parental leave before the proposed amendments come into force will be able retroactively extend their parental leave request and employees already on leave at that time can also take advantage of the maximum entitlement if they wish.
COMPASSIONATE CARE LEAVE
The proposed amendments also include an expanded compassionate care leave. In the event that a family member requires care or support stemming from a medical condition with a significant risk of death within 26 weeks, employees will be entitled to request unpaid leave of up to 27 weeks. Employees are currently only entitled to eight weeks of leave. The amendments also allow the leave to be taken at any time across a 52-week period.
The intended purpose of the amendment is to provide employees with family members who are terminally ill with more peace of mind while they care for their critically ill relative.
CHILD DEATH AND CRIME-RELATED DISAPPEARANCE LEAVE
Bill 6 also adds additional types of family responsibility leave, which may be requested upon the death or crime-related disappearance of a child who is under the age of 19.
Employees will be entitled to a leave period of up to 104 weeks upon the death of their child. Leave of this kind supplements the three days of bereavement leave currently available. The entitlement is limited to the period immediately following the child’s death, or if the child disappears, when the child is found dead. British Columbia joins Ontario as the only other province offering this type of entitlement.
Separately, if the child of an employee disappears and it is probable that the disappearance is the result of a crime, that employee is entitled to up to 52 weeks of unpaid leave. If the child is found during the leave, the leave will continue for a period of 14 days, but will end immediately if the child is found dead. Leave under both sections of the ESA are not available to employees who are charged with a crime that resulted in the death or disappearance of the child.
The amendments come into effect upon passage of Bill 6, which is expected to occur during the Spring legislative session, so employers should be planning ahead to address these changes. In particular, employees who are currently on, or about to start, pregnancy or parental leave may be seeking to make changes to their leave plans.
The B.C. Minister of Labour has indicated that Bill 6 is just the start of a larger review of the ESA and additional changes may be forthcoming.