Tackling The Coronavirus At Work – ESA Changes Coming

“The number of jobs… almost 160 million… we can’t turn that off…

there will be tremendous death from that.  Death.  You know you’re talking

about death.  Probably more death from that than anything that we’re talking

about with respect to the virus.”

                                                                                                                                       Donald J. Trump

 

The times, they are a changin’, and so too is B.C.’s Employment Standards Act (ESA).  The following is a B.C. government announcement issued on March 23rd

The Province has made two significant changes to the Employment Standards Act to better support workers both during the COVID-19 public health emergency and in the long term.

Firstly, changes will allow workers to immediately take unpaid, job-protected leave if they are unable to work for reasons relating to COVID-19. This means workers who are ill, need to self-isolate, need to care for their child or other dependent, or whose employer is concerned that the employee may expose others to risk, will be able to take leave without putting their job at risk.

“These proactive changes ensure that no one will lose their jobs for prioritizing their health and safety, or the health and safety of their loved ones and their community,” said Mike Farnworth, Minister of Public Safety and Solicitor General. “Given these extraordinary times, we are ensuring that the legislation provides protections for those impacted by COVID-19.”

The leave will be retroactive to Jan. 27, 2020, the date that the first presumptive COVID-19 case was confirmed in B.C. During this public health emergency, people can take this job-protected leave for as long as the circumstance that requires them to be away from work applies. 

Secondly, to better support workers on an ongoing basis, the changes also provide up to three days of unpaid, job-protected leave each year for people who cannot work due to illness or injury. This is a permanent change to the act that brings B.C. in line with all other provinces in Canada.

“This crisis has highlighted the importance of having permanent job-protected illness or injury leave in place for people in this province,” said Harry Bains, Minister of Labour. “We’re stepping up and bringing in this new leave to support workers over the long term, beyond this crisis.”

While on job-protected leave related to the COVID-19 crisis, workers may also be eligible for financial support through expanded Employment Insurance benefits through the federal government.

What Does The “COVID-19 Job-Protected Leave” Mean?

Effectively, the new COVID-19 job-protected leave will place an indefinite freeze on job status for employees “who are ill, need to self-isolate, need to care for their child or other dependent, or whose employer is concerned that the employee may expose others to risk”.  It means that those people will be able to take an indefinite, unpaid, statutorily-protected leave.

I have not seen the actual language changes to the ESA, yet, so I cannot say whether it will allow people to stay home simply because they choose to (and not because going to work poses a credible risk to their health and safety).  The announcement says that the COVID-19 job-protected leave will be available to employees who are…

  • ill,
  • need to self-isolate,
  • need to care for their child or other dependent, or
  • whose employer is concerned that the employee may expose others to risk.

Notably, the announcement does not say the leave will be available to employees who refuse to attend at work for personal reasons such as a (non-credible) fear for their health and safety.  That being the case, this announcement suggests to me that employees will not be able to avail themselves of the new “COVID-19 job-protected leave” simply by choice in that situation.  (But, we’ll see how “need to self-isolate” ends up being interpreted.)

I suspect this is intentional; to some extent, organizations have to keep running during this period, and giving employees a carte blanche right to stop working (but have their job protected) could well undermine that need.

What Does This Mean For Employers?

The introduction of the new COVID-19 job-protected leave means that, in the circumstances noted above, employees who assert the need for a leave must be provided it – indefinitely – and that their job status must not be affected as a result.

But, if an employee simply “doesn’t feel good about going to work right now”, how should employers react?  Should they invoke their legal entitlement to treat the employee as having resigned?

As I said in my previous bulletin, my advice to employers is, as much as possible don’t resort to that measure yet.  People are scared, they are being bombarded with bad news, they are feeling exceedingly vulnerable, they are in uncharted territory, and having their employer cut them loose if they won’t come to work certainly isn’t going to help.

Rather than pushing these people out the door with an R.O.E. reading “Quit”, my advice is to just leave them where they are for now.  Revisit the situation in a few weeks, see where things are at, see how “need to self-isolate” is being interpreted.  You may find you’ll desperately need those same people when this crisis eases, and you may be glad you didn’t leap at the opportunity to cut ties with them.

Update on Completing The R.O.E. Form

I previously suggested that, if an employee won’t come to work and you don’t believe there’s any legitimate safety reason for that, you could complete the R.O.E. form using the code for “Other” and inserting a related comment. 

However, I’ve since seen information advising employers to use code “N” (for “Leave Of Absence”) in this situation and not to insert a comment.  That is how I suggest you address the R.O.E. in that situation going forward.

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This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.

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