Part I – The Neverending Story: A Legislative Journey in Four Parts
Over the past few months, virtually every significant piece of legislation governing BC and federal workplaces has been subject to some major changes. To ensure you’re up to speed, we have prepared a four-part series focusing on the changes to BC’s Employment Standards Act, Labour Relations Code, Human Rights Code and the Canada Labour Code. Stay tuned as we bring you a new featured article each week. Who knew legislation could be this much fun!
Part I: Employment Standards Act
As you may recall from our earlier blog post on April 29, 2019, the BC government had introduced Bill 8 which proposed significant changes to the Employment Standards Act (“ESA”). This followed on other amendments made to the ESA in 2018, including to leave provisions. Bill 8 has now become law. To help you understand how the changes to the ESA could affect you and your business, we’ve outlined the more notable ones below:
The ESA now mandates that, unless a collective agreement provision governing matters such as hours of work, overtime and annual vacation meets or exceeds the minimum requirement in the ESA, the minimum ESA requirement is deemed to be incorporated into the collective agreement. This provision sets a baseline standard for employers with unionized workforces and reflects a significant change to the collective bargaining regime in BC. (ESA, section 3)
Employers are now required to provide or make available to every employee information about their rights under the ESA. (ESA, section 6)
The period of time for which employees can recover wages has doubled, from 6 to 12 months. However, the Director retains the discretion to extend the recovery period to up to 24 months. (ESA, section 80)
The requirement that employees first complete a self-help kit before filing a complaint with the Employment Standards Branch has been removed.
The changes to the ESA now allow the Director of Employment Standards to conduct investigations into ESA compliance, regardless of whether a complaint has been filed. This represents a significant expansion of the Director’s powers under the ESA and will be a situation to monitor moving forward. (ESA, section 76(2))
New restrictions prohibit employers from hiring children under 16, with some exceptions. Children who are 14 or 15 may be hired to perform “light work” with the written consent of their parent or guardian. Children under 14 years of age cannot be employed without receiving the Director of Employment Standards’ approval. While we know the content of the changes to this section, the changes are not yet in force and an implementation date has not been announced by the government. (ESA, section 9)
Domestic or Sexual Violence Leave
The ESA now provides leave for employees who experiences domestic or sexual violence, allowing them to take up to ten days of unpaid leave, in addition to a further fifteen weeks of unpaid leave, for a number of purposes arising from domestic or sexual abuse, including to seek medical attention, attend counselling services or seek the assistance of law enforcement. An employer is entitled to request “reasonably sufficient proof” from the employee seeking the leave, though this is not mandatory. (ESA, section 52.5)
Note that the province of BC is currently requesting public comment on whether Domestic or Sexual Abuse Leave under the ESA should include a portion of paid leave, like almost every other jurisdiction in Canada. The background to the government’s request for comment is here and the comment form can be accessed here.
Critical Illness or Injury Leave
This leave allows employees to take up to 36 weeks of unpaid leave to provide care to a family member whose life is at risk due to illness or injury and who is under 19 years of age. Employees are entitled to up to 16 weeks in the same circumstance to care for a family member who is 19 years of age or older. An employee seeking leave under this clause must provide their employer with a medical certificate. (ESA, section 52.11)
This follows on the province’s 2018 adjustment to pregnancy, parental and compassionate care leaves to bring them into sync with federal legislation, as well as the the addition of leave respecting the disappearance of a child (ESA, section 52.3) and leave respecting the death of a child (ESA, section 52.4).
The definition of “Immediate Family” has been expanded, affecting a number of leaves under the ESA, and a broader definition of “family member” is included for the purposes of Domestic or Sexual Violence Leave.
There are new provisions specifically directed at “gratuities”, which, among other things, mandate that employers may not withhold or make deductions from employees’ gratuities, except if a process is in place to collect and redistribute gratuities among some or all of the employer’s employees. (ESA, sections 30.3 and 30.4)
The above changes mark the most significant changes to the ESA in over a decade. The changes are largely the result of a report published by the British Columbia Law Institute in June 2018 that undertook a thorough review of the ESA and recommended a wide array of changes. Now is the time for employers to review their internal procedures and policies to ensure compliance with the revised ESA.
If you would like to discuss these changes or could use some help navigating them, feel free to contact Ryley Mennie, Connor Levy, or get in touch with our Workplace Law Group!