B.C. Introduces Compassionate Care Leave

By Pushor Mitchell LLP
Categories: Blog, Employment Law

The provincial government of British Columbia has introduced amendments to the Employment Standards Act providing compassionate care leave for employees. This legislation serves as a complement to recent federal legislation providing employment insurance benefits for compassionate care leave.

The proposed amendments provide for up to 8 weeks of unpaid leave to provide care or support to an ailing family member. The family member must be suffering from a serious medical condition posing a significant risk of death within 26 weeks of the earlier of the date of the certificate or the date the leave commenced.

In order to qualify for the leave, the employee must produce a certificate from a medical practitioner confirming the family member’s medical condition and imminent risk of death. The certificate must be provided to the employer “as soon as practicable”.

For the purposes of the Employment Standards Act, a family member means a member of the employee’s immediate family. This includes the employee’s spouse, child, parent, guardian, sibling, grandchild, or grandparent. It can also include any other person living with the employee as a member of the employee’s family.

Compassionate care leaves must be taken in units of at least one week in length. The entitlement to the 8 weeks of leave expires at the end of the 26 week period mentioned above. If the family member does not die during the 26 week period, however, the employee may take a further leave after obtaining a new certificate.

The new compassionate care leave is in addition to the other unpaid leaves already provided in the Employment Standards Act. These include pregnancy leave, parental leave, family responsibility leave, bereavement leave, and leave for jury duty.

The proposed amendments to the Employment Standards Act were only recently introduced in the B.C. legislature and are not law as of yet. The legislation has passed third reading in the legislature but has not yet received royal assent. The amendments will likely come into force some time in 2006.

Employees who are taking an unpaid compassionate care leave may apply for E.I. benefits during the leave. The federal Employment Insurance Act was changed in early 2004 to provide these benefits. It provides for up to six weeks of wage replacement benefits for the employee who must take unpaid time off work to care for a family member with a serious medical condition. There is a two week waiting period for the benefits to commence.

There are certain procedural requirements which must be met in order to qualify to receive these E.I. benefits. Similar to the B.C. legislation, a doctor must issue a certificate stating that the family member has a serious illness, there is a risk of death within 26 weeks, and the person requires a family member to provide care or support.

Care or support is defined in the E.I. Act as providing psychological or emotional support, arranging for outside care, or directly providing or participating in the care. Compassionate leave benefits can be split among family members of the family, although each must apply individually.

The proposed changes to the B.C. Employment Standards Act will likely not be welcomed with open arms by employers. The existing statutory leaves provided in the Act can already be a challenge for employers trying to maintain adequate staffing levels (without incurring the costs of overstaffing). Dealing with potentially lengthy compassionate care leaves will surely be viewed as one more staffing headache.

One beneficial aspect of the proposed changes that employers will appreciate is the mandatory provision of a supporting medical certificate. The onus on the employee to provide documented medical support for the leave should take a significant burden off the employer.

Nonetheless, there seems to have been a broad demand for this sort of leave provision. The ability to take time off to care for a seriously ill family member, along with the supporting E.I. benefits, will likely be embraced by employees all around British Columbia.