Disclaimer: This article is a summary of some but not all recent ESA amendments and should not be construed as legal advice.

Following through on their commitment to modernize the Employment Standards Act (ESA), the B.C. Provincial Government passed several further important changes to the ESA on May 30, 2019. This article covers key changes to the ESA impacting HR professionals.

Two New Types of Statutory Leaves

Employees will be able to take “critical illness or injury leave” of up to 36 weeks a year to provide care or support to an ill or injured family member under 19 and up to 16 weeks to provide care or support to family members over 19. Although employees will have to provide proof that an eligible family member (which is broadly defined) is seriously ill or injured, there is no mechanism for employers to check whether the employee is, in fact, going to dedicate substantial personal time during the leave to caring for the family member. Given EI benefits are now available for such care leaves, there may be opportunities for abuse by employees.

This leave significantly expands existing leave rights to care for family members to a broader range of non-terminal illnesses. Previously existing ESA compassionate care leave rights to care for a terminally ill family member will remain available however, despite the clear potential overlap with the new leave, which is not addressed in the amendments.

Employees who are victims of domestic or sexual violence will be entitled to 10 non-consecutive days of leave to deal with common issues victims face including finding new accommodation, arranging protection from the abusive person or court or police attendances. In addition, they may take a continuous leave of up to 15 weeks to deal with the consequences of the violence. This leave can also be taken in multiple periods with the employer’s consent.

These new leaves come on top of expanded maternity and parental leaves introduced last year, continuing a Canada-wide trend of requiring employers to give employees more time off for longer periods for a wider variety of personal reasons. Many of the new leaves are of middling duration and well under 12 months. According to some HR practitioners, this will pose a tougher challenge to backfill than longer maternity leaves, particularly in the current tight labour market. The fact that these leaves can be taken with little or no advance notice, whereas HR practitioners are normally able to plan for maternity leave coverage months in advance, further adds to the challenge for HR professionals. If the employer cannot hire a replacement, the burden of covering for the employee on these new leaves will often fall on management and co-workers, with potential impact on productivity and service levels if they are unable to cope.

Expanded Liability for Wages

The amendments significantly increase potential employer liability for failing to pay wages such as overtime pay. This includes extending the time period for wage recovery from six months to 12 months—with the possibility of 24 months in special circumstances to be prescribed by regulation. The new 12-month timeframe for liability applies even to wages earned under the old six month limit. For common claims such as for unpaid ongoing overtime, this amendment effectively doubles an employer’s financial exposure to a claim and is a great reason to confirm your organization is ESA compliant.

Resignation Rules

The Act now also confirms that employees who give notice of their resignation and then are terminated without cause during the resignation notice period are only entitled to receive the lesser of:
their pay over the balance of the resignation notice period; or the amount the employer must pay if terminating without cause.

It is unclear if the second amount is limited to ESA minimum termination pay or may include greater contractual severance if applicable, but the latter view would be more consistent with the ESA. This amendment confirms existing practise and contract law on the same point.

Tighter Regulation on Hiring Children

Responding to concerns raised about children working in onerous or unsafe jobs, the amendments raise the age a child may work from 12 to 16 years old and places tighter restrictions on hazardous work 16 to 18 year olds’ may perform, while providing exemptions that allow 14 to 15 year olds to perform light work. Notably, the legislation maintains existing regulations allowing children to work in recorded and live entertainment with parental consent. These amendments will come into force at a later date not yet set.

Tips and Gratuity Regulation

In order to better protect tips, the amendments bring in a new legal framework for regulating gratuities (tips) and tip pooling, defining them as “wages” protected by and collectible under the ESA and protecting those tips from employer encroachment. In particular, owners and managers are prohibited from taking any tips, although managers who also do the same work as the tipped workers can participate. Those hospitality employers who had been taking some of the tips or gratuities will have to change their practises and potentially their wages and prices as a result.

The Right of Unions and Employers to Agree to Lesser Standards

The amendments reinstate the prior rule that collective agreements must “meet or exceed” ESA standards on all topics such as hours of work and overtime. However, this will only take effect with the next collective agreement giving the employers a chance to negotiate offsetting arrangements with the union. Unionized employers with lower than ESA terms in their agreements need to be aware of this change when bargaining.

Informing Employees of their ESA Rights

When onboarding employees, employers must provide them with a prescribed summary of their ESA rights. That document can be found HERE.

We recommend this document be added to HR professionals’ onboarding checklist.

Record Keeping

The amendments extend the time period for retaining records (including payroll, averaging agreements, agreements relating to special clothing and substitution of another day for a statutory holiday) from two to four years.

Attuned to ESA Amendments

These are only the main highlights of the reforms. HR professionals need to become familiar with the new leave rights and incorporate them into their leave policies, and ensure they are giving new hires their ESA rights summary and retaining records.

Employers who hire children (such as in family businesses) or are in the hospitality industry should make sure they understand and comply the new laws that are in effect or will be shortly. They should also stay tuned for more possible amendments to come.

J. Geoffrey Howard (ghoward@meplaw.ca) is a senior employment lawyer who advises employers and employees on workplace law issues, including employment standards compliance, at business and entertainment law firm MEP Business Counsel in Vancouver. James Hsu (jhsu@meplaw.ca) is an associate at MEP Business Counsel where he works closely with Mr. Howard and advises clients on employment, labour and business law matters.

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