The B.C. ESA has Changed: What’s New and What’s Coming

October 2018

Article by: Maggie Campbell

Previously printed in the LexisNexis Labour Notes Newsletter.

British Columbia’s NDP government recently moved forward with some significant changes to the province’s Employment Standards Act (“ESA”).  The minimum wage and some statutory leaves of absence have been increased, and these changes are merely the start:  further and far reaching amendments to the ESA are expected in the near future.

Minimum Wage Has Risen

On June 1, 2018, the minimum wage in B.C. increased from $12.65 to $13.20 per hour.  This increase was part of a multi-year plan to raise the minimum wage to $15.20 by June 1, 2021.  Further incremental increases are scheduled for June 2019 ($13.85) and June 2020 ($14.60).  Employers in industries which rely on minimum wage labour will feel this crunch and, across sectors, these hikes will result in compression in compensation, as starting wages creep into the range of longer service employees.

ESA Leaves Have Increased

Significant changes respecting some ESA statutory leaves came into effect on May 17, 2018.

The most impactful change was to parental leave, which was extended to a potential 61 weeks for birth mothers and 62 weeks for non-birth mothers.  When combined with the 17-week pregnancy leave, birth mothers can now take up to 18 months off work.  This change brings the combined ESA pregnancy and parental leave into line with the recent changes to the federal Employment Insurance (“EI”) scheme.  Prior to this ESA amendment, employees had the option of stretching their EI benefits for an 18-month period, but only had the right to take 52 weeks of leave from their employment.  This change will have a significant impact on workplaces across the province, and employers will need to adjust policies and practices to accommodate employees wishing to take an 18-month leave.

Another significant increase has been made to the leave provisions related to compassionate care leave.  Previously, employees could take eight weeks of leave to care for their seriously ill loved ones. Workers can now take a total of 27 weeks (within a 52-week period) to care for a family member who is terminally ill and has a significant risk of death within the next 26 weeks (six months).

Two new leaves were also introduced for employees dealing with child loss and disappearance.  The child death leave provides employees with two years (104 weeks) of protected, unpaid leave in the event they lose a child.  This is a significant increase from the previous entitlement, which was a mere three days of bereavement leave.  Further, the new crime-related child disappearance leave provides for 52 weeks of unpaid leave.  Both of the new leaves must be taken in a single, continuous period unless the employer consents to it being taken intermittently.

More Changes are Coming

These recent amendments are likely just the beginning of changes to the B.C. ESA.  On June 21, 2018, the Employment Standards Act Reform Project Committee released a report containing some 78 recommendations for further amendments to the legislation.

The Committee’s broad and comprehensive recommendations would result in major changes such as:

  • abolishing overtime banks and providing a new right to refuse overtime without reprisal;
  • increasing “call in” pay and restricting last-minute changes to shift schedules;
  • loosening restrictions to allow employers to have compressed work weeks without incurring liability for overtime; and
  • requiring employees to complete a new three-month qualifying period for statutory leaves.

The Committee has heard feedback from the public and stakeholders, and it is too soon to tell what recommendations will actually result in amendments.  However, it is clear that employers should anticipate significant changes to the ESA in the coming months.

Takeaways for Employers

All employers must make sure they are meeting the new minimum wage, and should plan on implementing the further increases that are around the corner.  Employers should also review the amended leave provisions in the ESA to ensure they fully understand their new obligations.  This is a crucial time to make sure that policies are updated to reflect the new statutory leaves and the extended parental and compassionate care leaves.  If top-up pay is provided for pregnancy/parental leave, employers must consider the impact of a longer leave and what changes, if any they will make to this benefit.  More changes to the ESA are coming; employers should stay tuned for updates.