Topic 146-BC Importance: High. For an employee to care for a seriously ill family member. Bereavement, jury duty and family responsibility leave were creations of the revised 1995 consolidation of the Employment Standards Act, added in response to the recommendations of the Thompson Report on employment law.80 The most recent addition to the Act is Canadian Forces reservist’s leave, added in 2008. The primary purpose of this letter is to put a request for parental leave (after the baby is born or adopted) in writing to an employer. For FMLA eligibility, you must have been employed by your company for at least a year and have worked at least 1250 hours in the past 12 months. The Family and Medical Leave Act (FMLA) is a federal law that can be of assistance if you need to take time off work because of family responsibilities. Maternity Leave and Parental Leave . This article may not be republished without the express permission of the copyright owner identified in the article. The Employment Insurance Act addresses this problem in a narrow set of circumstances. 90 days. In the U.S. the state of California has taken the approach recommended by most criticisms of the Canadian Compassionate Care benefit by expanding the scope of paid leave beyond end-of-life care to include all seriously ill family members.116 Infant care and adult care are addressed under related provisions, with neither singled out for prioritization. The right is limited to the ability to take leave without jeopardizing your job status. Therefore, it was the view of the Court that the arbitrator was unreasonable in her conclusion that the son was in the care of his father simply because he lived in his parents’ house for part of the year. BC Family and Medical Leave Policy. However, those requests had been granted under a prior administration policy where supervisors granted such leaves without requiring employees to provide information sufficient to establish their entitlement to the leave. As with all Part 6 leaves, the employer has no discretion to grant or not to grant family responsibility leave to an employee who requests it and is entitled to it. Connecting entitlement to financial benefits partly subsidized by government exclusively to labour force earnings creates an inequity in the valuation of care labour: higher earnings may mean higher benefits during a period of caregiving and a poor work history means no benefits at all. This leave may be for purposes other than to attend a funeral. An employer cannot refuse to grant family responsibility leave. (3) The employee must give the employer a copy of the certificate as soon as practicable. For an employee to deal with family responsibilities or personal illness. Only 8% stated they had received employment insurance, and over twice as many caregivers went on income assistance at some point during their period of caregiving. He grieved the Employer’s denial of family responsibility leave. BC Courts and the BC Human Rights Tribunal have not generally been receptive to these complaints, holding that a complaint of family status discrimination will not succeed in the usual case of an employee experiencing a conflict between work and family obligations. In the U. K. and France there is no entitlement to paid caregiving leave; however, employment legislation grants employees the right to much more lengthy periods of time off work without pay in order to respond to caregiving obligations. The Employer denied the request for family responsibility leave. This raises the question of what should be the length of term of leave protected under provincial legislation and what portion of this leave should be linked to entitlement to corresponding EI benefits. Under the provincial Employment Standards Act, most BC employees have the right to take a very limited amount of time off work to care for an adult family member without losing their job. Comparable legislation exists in all other Canadian jurisdictions including the federal level. 3 days. Over 35% used up vacation time and 25% used up sick time in order to meet caregiving obligations without a loss of income. Paid family leave is currently how all other advanced economies resolve infant care, often with paid leaves for one or both parents of several months to a year or more. The significance of statutory protection is twofold. (4) An employee may begin a leave under this section no earlier than the first day of the week in which the period under subsection (2) begins. For more information, see Interpretation Manual – Section 52. Parental leave, or family leave, is an employee benefit available in almost all countries. This may be extended by up to six consecutive weeks if you’re unable to return to work for reasons related to the birth. Eligibility For FMLA Leaves. While there is no request process set out in the act, employees are expected to give the employer reasonable notice of family responsibility leave and sufficient information for the employer to ascertain that the employee is entitled to the leave. The question also arises as to whether it is appropriate to limit leave to intervals of one week and to full days, as is the case under current provincial law. The section is worded as follows: 52 An employee is entitled to up to 5 days of unpaid leave during each employment year to meet responsibilities related to, (a) the care, health or education of a child in the employee’s care, or. Saskatchewan grants employee job protection for up to twelve weeks per year due to serious illnesses requiring caregiving and an additional four weeks where the employee is in receipt of EI compassionate care benefits.89 Quebec allows up to twelve weeks.90. Copyright © 2020. go2 Tourism HR Society. The Employee Relations Officer considered the grievor’s request and determined that transporting a post-secondary student home from university at the end of the school year was not “a responsibility related to the health, care or education of a child in the employee’s care” pursuant to section 52 of the Act. Fax: 1-844-367-5163 They were not designed to support caregivers to sustain other caregiving relationships. Under the B.C. Both of these rights allow an employee to take unpaid leave to care for a family member, if certain criteria are met. In her view, if a child lives at home when not attending school or university that was sufficient to establish he or she is “in the employees care”. Please excuse any mess you see. In a social welfare state, where aspects of health care are subsidized by the government, family caregiving might be more properly viewed as a form of service to the state and community. These general leaves have been taken to address personal health, education, travel and volunteerism as well as family caregiving. You may begin this leave up to 13 weeks before the expected birth date. There is no question that the purpose of maternity and parental leave would be different from the purpose of adult caregiving leave, as the former is associated with breast-feeding, post-natal recovery and bonding with infants – purposes clearly not linked to adult caregiving. This category only includes cookies that ensures basic functionalities and security features of the website. Section 2 of the Employment Standards Act sets out the purposes of the Act, the last of which is directly relevant to the issue of family care. This international review highlights a number of the weaknesses of the current legislative regime in BC and Canada in relation to caregiving leave. Start by talking to your company's human resources department. An employee is eligible for family and medical leave if he/she has been employed by the University for at least 12 months and has worked at least 1,250 hours during the twelve-month period prior to the time leave would begin. The Employment Standards Act is the only current legislative source of entitlement in BC legislation for leave in relation to family issues. Kelly missed out on two terms of teaching to support her sister into remission. Every jurisdiction in Canada except for Saskatchewan requires that the family member whom the employee is caring for be diagnosed with a serious medical condition with a significant risk of death within 26 weeks. An international comparison reveals slightly more expansive rights available in Australia and Europe. Enacted in 1993, FMLA requires certain companies to provide employees unpaid leave for issues related to family (such as caring for a newborn or adopted child) or health issues (your own or a family member's). Join our online gathering of BC’s caregiver community, together offering connectedness, compassion and information during this time of uncertainty. Jury duty: An employee who is required to attend Court as a juror is considered to be on unpaid leave for the period of the jury duty. The Employment Relations Act states: (1) An employee is entitled to be permitted by his employer to take a reasonable amount of time off during the employee’s working hours in order to take action which is necessary-. Discover why this year's winners were chosen and search current job postings. However, the amount and duration of the benefit mirror the Canadian approach. Saskatchewan simply requires that the family member is incapable of working due to illness or injury. BC, like most provinces, does not have a length of service requirement for eligibility for short-term leave. Policies ranged from two to seventeen days per year. Further, the Court found that the son was no longer in the care of his father as is required for the granting of family responsibility leave under section 52(a) of the Act. Furthermore, every jurisdiction in Canada combines short-term leave for childcare and adult caregiving. Studies of caregiving unilaterally recommend expanding the scope of paid leave entitlement to include other forms of family caregiving,117 a change that would require reform of both provincial employment standards legislation and the federal Employment Insurance Act. Family caregiver leave is given to employees to provide care and support to family members who are seriously ill. Proceed to Chapter 4 As is the case with all EI benefits, entitlement is limited to employees who have sufficient recent work history in terms of hours of insurable employment. On review, the Court of Appeal found that the arbitrator erred in interpreting the word “child” in section 52 of the Employment Standards Act. All jurisdictions, save Alberta, have developed some form of long-term statutory leave entitlement, although Alberta, Yukon, the Northwest Territories, Nunavut, and the Federal government have no short-term statutory leave provisions. However, viewed through a broader family caregiving lens, where the care recipient is often not facing imminent death, the family leave provisions, providing only two weeks of job protection and no paid leave, become comparatively weak in relation to a number of key countries, including Australia, the United Kingdom, France, the Netherlands and the U.S. Australian employment legislation gives workers a right to two weeks paid carer’s leave to support immediate family members or household members in the event of illness, injury or unexpected emergency.108 This is balanced against an entitlement to only two days paid compassionate care leave each time a family member faces a life-threatening illness109 and two days unpaid leave to respond to family illness, injury or emergency once paid carer’s leave is exhausted.110 So overall, the Australian approach to leave is conservative. Benefits. These cookies will be stored in your browser only with your consent. Consistent with the limitations of the Employment Standards Act, these leaves are not directed at employees with ongoing caregiving responsibilities, and the leave periods are quite brief in relation to the demands of caregiving. The Canadian approach to care leave generally emphasizes end-of-life caregiving and provides little recognition for other forms of caregiving other than care for children during the first year of their lives. Infant care is the most expensive kind of child care, because it requires more teachers with smaller groups of babies and more one-on-one care than does care for older children. Family Leave. Eurocan Pulp and Paper Co.) v. Communications, Energy and Paperworkers Union of Canada, Local 298, 2008 BCCA 403). Once an employee has successfully applied for EI and created a file with Human Resources and Skills Development Canada, she can claim EI for the weeks within the 26-week window for which she is unable to work as a result of caregiving, and receive benefits for up to six weeks. In the present case, the son was over the age of 19 (the age of majority in BC) and was no longer a child. This leave is a statutory entitlement, not something that may or may not be granted at the discretion of the employer. It is for this reason that numerous reports and consultations recommend an expansion of benefits available to family caregivers. Employers should record the absenc… While employers and employees subject to the Employment Standards Act cannot contract out the minimum statutory obligations set out in the Act, they can contract for additional rights and obligations over and above those set out in the Act. 30 days. There also does not appear to be any restriction on how much time the employee must take at a time, suggesting that the employee can take as little as a hour or as much as the full five days at a time. Under British Columbia’s Employment Standards Act, employees are entitled to certain leaves of absence, including maternity leave and parental leave. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. British Columbia employees governed by the Employment Standards Act possess two separate and distinct family care leave rights: 1. short-term leave entitlement called "family responsibility leave"; and. Appendix A contains a table that compares employment leave provisions available under the various provincial and territorial employment law statutes. We'll assume you're ok with this, but you can opt-out if you wish. The ESB Manual does address the issue again in its discussion of s.52, stating: Under s.1 of the Act, "immediate family" means the spouse, child, parent, guardian, sibling, grandchild or grandparent of an employee, and any person who lives with an employee as a member of the employee’s family. Workers Excluded from Family Responsibility Leave: The provisions for family responsibility leave do not apply to workers who work less than: - 4 months for their employer - 4 days a week for one employer - 24 hours a month, or to - leave over and above that provided for by the Act. Practice Directions - Family Users are advised to also consult the Administrative Notices and the Practice Directions - Civil to ensure that they are aware of all directions which may affect have relevance to the matter in which they are engaged. COVID-19 home isolation has led to increases in abuse and family violence. Any cookies that may not be particularly necessary for the website to function and is used specifically to collect user personal data via analytics, ads, other embedded contents are termed as non-necessary cookies. Family responsibility leave, providing only five days of relief, does not address the actual ongoing care needs of most recipients of family care, and being unconnected to any income replacement measures through the Employment Insurance system, provides for no paid leave. Download a PDF of this Chapter (b) any other individual who is a member of a prescribed class. Most of the employers we spoke with indicated that an extended unpaid leave of up to six months is available to employees under general discretionary leave of absence policies. All Rights Reserved. Section 52.1 provides a right to take up to 8 weeks of unpaid leave if the following criteria are met: 1. the leave request must be to care for a family member who is either an "immediate family member" as defined in the Act, or a member of the "prescribed class" set out by regulation; 2. the family member must have a serious medical condition with a significant risk of death within 26 weeks; and. "107 Certainly this change would expand the accessibility of benefits to caregivers. In both cases the right is not, however, absolute, and the employer has limited discretion to deny leave for operational reasons. Although it must be connected to the "health, care or education" of a family member, there is no requirement of urgency or emergency. Eldercare was not an issue employers appear to have encountered: only one human resources manager that we spoke with was aware of an employee having taken a leave for adult family caregiving; this manager indicated that the employee took an unpaid six months leave and returned to work for financial reasons. The reason given for the leave was “Edmonton relocation for summer employment”. In France, two kinds of extended unpaid family leave are available under the French labour code: the equivalent of compassionate care leave, family solidarity leave, is a three-month leave that may be renewed once and taken on a part-time basis;112 family assistance leave is a three month renewable leave with a one year limit per person per working lifetime.113, The Netherlands offers employees the broadest protection in relation to paid care leave. The current laws permit new parents to jointly take up to one year off work in order to care for a new baby.100 Leaving aside the issue of whether one year is adequate, the lack of entitlement to take a comparable leave for caregiving of older adults and other family members raises the question of why other forms of caregiving are not also worth recognition. Information provided by Ryan Anderson, an employment lawyer with Mathews Dinsdale & Clark LLP. Family responsibility leave does not carry over from year to year if it is not used during the employment year. Vancouver, BC V6C 1E1, Tel: 604-633-9787 Under the Compassionate Care Benefits program, a caregiver is entitled to Employment Insurance benefits for up to six weeks, if certain eligibility criteria are met. The most significant is the limitation of paid leave to circumstances where the care-recipient faces a "significant risk of death within 26 weeks". BC and Ontario allow an employee to renew the leave if the family member requiring care does not die within 26 weeks. go2HR, SuperHost and Winning Pitch are trademarks of go2 Tourism HR Society. The Employment Standards Branch (ESB) Manual provides the following by way of clarification of the definition of the term "immediate family": A broad and liberal interpretation of "immediate family" is considered by the director to include common-law spouses, step-parents, and step-children, or same sex partners and their children. The focus of this chapter is the BC Act and mirroring provisions of the Employment Insurance Act. The meaning of immediate family thus excludes, for example, aunts, uncles, nieces, nephews, close friends and neighbours. The benefit is at least 70% of their wage and 100% of minimum wage.114 Compassionate care leave benefits are also provided for a period of six weeks at 70% of employment wages and the leave may be taken on a part-time basis and spread out over an eighteen-week period. Their equivalent to our family responsibility leave entitles employees to ten days paid leave. This leave is short term (3 unpaid days) and as a result “family responsibilities” is viewed broadly. BC’s five day Family Responsibility leave is longer than the leave protected by the legislation of Manitoba, New Brunswick, Nova Scotia, and Prince Edward Island, which grant employees a right to a leave of up to three days. Section 52 of the Act entitles employees to five days of unpaid leave during each employment year to meet responsibilities related to the care, health or education of a child in the employee’s care or the care or health of any other member of the employee’s immediate family.. When compared to Canada, the U.S. Family and Medical Leave Act is sparse and makes the U.S. one of the only nations in the world that does not mandate some form of paid leave for new parents. Only one employer had created an eldercare specific policy. There is no right to paid family leave in British Columbia, that is to say, there is no statutorily-protected right to take any time off work to care for a family member and to still be paid by your employer or the Government for that time. Similarly, the Dutch approach of permitting a part-time leave with income replacement may be more responsive to the circumstances of some caregivers than our current system. (b) if the leave began before the date the certificate is issued, the date the leave began. Why are these leaves distinguished for special treatment? Finally, the linking of entitlement to income replacement to Employment Insurance will exclude the underemployed and people who have insufficient hours of insurable employment leading up to a period of intensive caregiving. Compassionate Care Leave is a longer-term leave right that requires the production of a medical certificate. Looking for legal advice orlegal information? The purpose of family responsibility leave is rather to allow the worker to take a day off work here and there. By way of comparison, other leave entitlements provided under the Employment Standards Act include: As compared with other forms of family caregiving, employment standards legislation places significantly greater value on infant care. The Branch advised that such a situation did not entitle individuals to leave. The right is limited to the ability to take le… This chapter of Care/Work introduces family responsibility and compassionate care leave in BC and considers whether the existing legislation is adequate. Comparison with legislation across the country and the language of collective agreements confirms that the intention of Family Responsibility was not to address ongoing family caregiving; rather, it is intended to permit employees to respond to unexpected family concerns and emergencies. First, the employer cannot deny the leave request provided the statutory requirements for leave are met;75 second, the employee must not be prejudiced for taking the leave in the following respects: the employer may not terminate employment or change a condition of employment because of the leave; the employer must return the employee to the same or a comparable position subsequent to the leave;76 and employment is deemed continuous for the purpose of calculating vacation pay and pension, medical or other plan benefits.77 Essentially, the significance of the leave provisions is that both employment and benefits are protected throughout the duration of the leave. Section 1 defines immediate family as the spouse, child, parent, guardian, sibling, grandchild or grandparent of an employee, and any person who lives with an employee as a member of the employee’s family. The grievor applied for and was granted paid leave under provisions of the collective agreement and took the time off under those provisions. Family Responsibility Leave . It is a relatively new benefit, which came into effect in January 2004. 30 days. Moreover, for Kelly employment is consistently precarious: every term it is possible that she will not secure any classes or too few to meet her living expenses. Although the language of "Family Responsibility" is not invoked across the country, most jurisdictions now have some kind of short-term leave. This website uses cookies to improve your experience. (a) to provide assistance on an occasion when a dependant falls ill, gives birth or is injured or assaulted. She was not eligible for any benefits through her employer. Kelly is casual employee at each institution for which she teaches classes. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com. The goal of this study is certainly not to undermine maternity and parental leave benefits, but rather to query why other forms of care are not similarly valued. (b) to make arrangements for the provision of care for a dependant who is ill or injured. Close to 25% indicated paid time off work would significantly improve their lives. The Compassionate Care Leave regulation sets out a lengthy list that includes step-siblings, aunts, uncles, nieces, nephews, current and former foster parents and children, spouses of sibling, step-siblings, children and step-children, and other family members, and contains the following language that suggests one would be able to take leave to care for a friend one considers to be akin to a close relation: Whether or not related to the person by blood, adoption, marriage or common law partnership, an individual with a serious medical condition, as described by section 52.1(2) of the Act, who considers the employee to be, or whom the employee considers to be, like a close relative.86, Leave can be renewed if family member does not die within 26 weeks. Part 6 of the Act sets out a number of statutorily protected unpaid leaves: pregnancy leave, parental leave, family responsibility leave, compassionate care leave, reservists’ leave, bereavement leave and jury duty leave. Ultimately, employment standards do not recognize the demands ongoing family caregiving places on the worker. The Index and Table of Concordance may be of assistance in identifying other relevant Practice Directions or Administrative Notices. While there is a rationale for partial income replacement, the implication that the caregiving labour of lower income people is worth less is problematic. However, while there is a fair amount of variety in British Columbia in terms of specific collective agreement language, based on our limited review of collective agreement provisions in this province, they do not contain significantly greater rights in the area of family leave. Return to Table of Contents, 1822 East Mall University of British ColumbiaVancouver, BC, V6T 1Z1. Most colleges in the province are union environments and teaching is generally associated with excellent benefits. Employees may be entitled to additional benefits by virtue of a union collective agreement or other contract negotiated individually with an employer. Under the current legislation there is essentially no entitlement to unpaid or paid leave for the purpose of providing care to adult family members who are not expected to die within 26 weeks. As an alternative to short or long-term leave, a number of employers allow employees to earn paid personal days off by essentially banking time. This is reflected in the very low uptake of the EI benefit: less that 4% of the funds budgeted for this benefit were utilized in the 2004-2005 fiscal period,103 suggesting that the Government of Canada actually intended this innovation to benefit a much broader community of caregivers.104. The scope of family responsibility leave came before an arbitrator when an employee grieved his employer’s refusal to grant leave in order to move his adult son home from university: Eurocan Pulp and Paper v. Communications, Energy and Paper Workers Union of Canada, Local 298 (Schibli Grievance) (2007), 166 LAC (4th) 78 (Burke). Any benefits through her employer a 75-mile radius of the employee ’ s family would be considered immediate! Generally associated with excellent benefits and parental leave Canadian approach days a week to be rare! Generally interfere with Labour force activity employment leave provisions of the Act per year infant care care was. For childcare and adult caregiving leave appears to be a rare benefit separates sick leave entitlements from short-term for..., SuperHost and Winning Pitch are trademarks of go2 Tourism HR Society dependant falls ill, birth. Every jurisdiction in Canada combines short-term leave sustain other caregiving relationships over others are! Voice during our caregiver survey results indicate that access to paid employment leave is a member the! 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