Employers must comply both with ESA and Human Rights Code
Workers in British Columbia who are dealing with cancer, major injuries or other serious health conditions now have a clear legal right to step away from work for months of treatment and recovery, with a guarantee that their job will be waiting when they return.
The B.C. government’s new “serious personal illness or injury” leave under the Employment Standards Act (ESA) allows employees to take up to 27 weeks of unpaid, job-protected leave in a 12‑month period when they cannot work for medical reasons.
The new provisions, now in force, apply to workers covered by the ESA who are unable to work for at least seven consecutive days because of a serious illness or injury. Rather than being a one‑time block of time off, the leave can be taken in one or multiple periods within a 52‑week window, allowing workers to schedule time away from work around treatments such as chemotherapy or to manage episodic conditions like multiple sclerosis.
“People should never have to choose between their job and their health,” said Premier David Eby.
This brings the province in line with similar protections elsewhere in Canada such as Ontario, Manitoba, Quebec, Nova Scotia and Newfoundland and Labrador, with Saskatchewan expected to follow.
Just recently, new rules enacted in British Columbia restrict when employers can ask for sick notes.
How job-protected leave works in B.C.
Under the new serious personal illness or injury leave, employees can take up to 27 weeks of unpaid leave within any 52‑week period if they cannot work because of their own illness or injury, regardless of how long they have been employed.
To qualify, employees must provide a medical certificate from a doctor, nurse practitioner or other designated health professional confirming they are unable to work, the date the leave begins and the expected return‑to‑work date.
The ESA rules require employees to take the leave in whole‑week units. A week runs from Sunday to Saturday, so if a worker starts their leave midweek and returns midweek, the absence counts as two weeks. The 52‑week period for calculating entitlement starts on the Sunday of the week when either the certificate is issued or the first leave begins, whichever comes first.
If the full 27‑week entitlement is not used at once, subsequent leaves can be taken in the same 52‑week window, as long as employees either provide a new medical certificate or return early and later need more time off before their originally anticipated return date, according to the government.
This new ESA leave is intended to complement, not replace, federal Employment Insurance (EI) Sickness Benefits, which can provide income support while the provincial law secures job protection.
Twin obligations: human rights code and ESA
While the ESA changes create a new statutory leave, they do not replace employers’ existing obligations under the B.C. Human Rights Code, according to a post by Andrea Raso, partner, and Ty Bradford, associate, at Clark Wilson, who note that the leave is similar to human-rights‑based accommodation duties but provides additional protections for employees.
“While the accommodation obligations under Human Rights Code generally require employers to maintain employees’ employment while they are unable to work due to a mental or physical disability, the new Serious Illness or Injury Leave gives employees a separate legal right to take time off work. Moreover, it provides job protection.”
As a result, organizations must simultaneously comply with the ESA and the Human Rights Code when dealing with extended medical absences, say the legal experts.
“This emphasizes the importance of accurately tracking medical documentation and leave length, and managing return-to-work processes. Care must also be taken when restaffing an employee’s position during their leave to limit liability to new staff once the employee is fit to return to their position.”
B.C.’s broader leave framework
The serious personal illness or injury leave sits alongside a range of other job‑protected leaves under the ESA, such as illness or injury leave (often referred to as sick leave), maternity and parental leave, family responsibility leave, compassionate care leave, critical illness or injury leave and various leaves related to domestic or sexual violence, bereavement, jury duty and circumstances involving the disappearance or death of a child.
To support implementation, the Employment Standards Branch has updated public resources, including a guide explaining how the serious personal illness or injury leave operates and how employers can align their workplace policies and practices.
