New BC Serious Illness Leave: Impact on Termination and Severance Entitlements

New BC Serious Illness Leave: Impact on Termination and Severance Entitlements

British Columbia employers and employees must navigate recent amendments to the Employment Standards Act that introduce significant job-protected leaves for serious personal illness or injury. These changes, effective November 28, 2025, via Bill 30 – 2025: Employment Standards (Serious Personal Illness or Injury Leave) Amendment Act, 2025, add up to 27 weeks of unpaid leave in a 52-week period. This development directly influences termination decisions and potential severance entitlements in BC, as job protection during leave preserves employment continuity.

At Bay View Law, we advise clients on how these updates affect workplace rights and obligations. Understanding the interplay between statutory leaves and common law notice periods is crucial for assessing severance packages accurately.

Overview of the New Serious Personal Illness or Injury Leave

The amendment introduces section 49.01 to the Employment Standards Act, allowing eligible employees unable to work for at least one week due to serious personal illness or injury to take up to 27 weeks of unpaid, job-protected leave within any 52-week period. Eligibility requires a prescribed number of consecutive days of employment, and employees must provide a certificate from a medical practitioner, nurse practitioner, or qualified health professional confirming the inability to work, start date, and anticipated return.

Leave can be taken in multiple periods, in weekly units aligned with the work week. This aligns BC standards with other provinces like Ontario and aligns with federal Employment Insurance sickness benefits duration. The BC government consulted employers, workers, and health advocates before implementation, addressing gaps where no prior long-term illness leave existed under the Act, though human rights protections against discrimination remain under the BC Human Rights Code.

Job Protection and Reinstatement Rights

Under Part 6 of the Employment Standards Act, this leave is job-protected. Employers must reinstate employees to the same or a comparable position with no less than the original wages, benefits, and seniority upon return. Section 54 prohibits termination or adverse changes in employment conditions due to the leave. Employment is deemed continuous during the leave per section 56, preserving entitlements to vacation pay, seniority, and benefits.

Terminating an employee during or immediately after this leave risks claims of reprisal, potentially leading to reinstatement orders or penalties through the Employment Standards Branch. For employers, documenting legitimate business reasons unrelated to the leave is essential, but Bay View Law recommends caution to avoid disputes.

Interaction with Other Leaves

This leave complements existing provisions like illness or injury leave (up to 5 days paid after 90 days employment under section 49.1) and critical illness leave. Employees may access multiple leaves if eligible, but totals are capped within periods. Continuity ensures no loss in service length for calculating statutory termination pay under section 63.

Implications for Termination and Wrongful Dismissal

These protections heighten risks in termination decisions. Dismissing an employee on or near serious illness leave may trigger complaints to the Employment Standards Branch, which investigates reprisals. Successful claims can result in compensation for lost wages, penalties up to $10,000 per violation, or tribunal orders.

In wrongful dismissal actions at common law, courts assess reasonable notice based on factors like length of service, age, and role character. Job-protected leave preserves service continuity, so post-leave terminations calculate notice from original hire date. Bay View Law has seen cases where improper handling of illness-related absences leads to aggravated damages claims for bad faith.

For employees, these rules strengthen positions in severance negotiations. Employers must provide at least statutory minimums: 1-8 weeks’ pay based on service under section 63, but common law often exceeds this for non-exempt staff.

Sick Notes Prohibition: Complementary Amendment

Effective November 12, 2025, Bill 11 – 2025 adds section 49.2, prohibiting employers from requiring sick notes for the first two health-related short-term absences (up to 5 consecutive days) per calendar year. Regulations under OIC 514-2025 define specified circumstances and exceptions. Employees still provide ‘reasonably sufficient proof’ if requested, but not medical documents.

This reduces administrative burdens but underscores reliance on leave protections. Abuse risks complaints, tying into broader termination scrutiny.

Practical Tips for Employers Managing Serious Illness Leave

• Update policies to reflect new leave entitlements and communicate clearly.
• Request required medical certificates promptly but respect sick note limits for short absences.
• Maintain benefits during leave and plan for temporary coverage without altering returning employee’s role.
• Document all interactions; consult legal counsel before any termination involving ill employees.
• Train HR on reprisal risks and Employment Standards Branch processes.

Practical Tips for Employees Asserting Rights

• Obtain and submit medical certificates as soon as possible to commence leave.
• Track leave usage and 52-week periods for multiple claims.
• Report suspected reprisals to the Employment Standards Branch within 6 months.
• In termination, demand full common law notice; service continuity bolsters claims.
• Seek advice early to evaluate severance offers against entitlements.

How These Changes Affect Severance Calculations

Severance in BC comprises statutory termination pay and common law reasonable notice. New leaves ensure no service break, so a 10-year employee taking 27 weeks leave gets notice based on 10+ years. For a quick estimate of your potential severance, try our free BC Severance Pay Calculator at bvlaw.ca/severance-pay-calculator/.

Employers with termination clauses must ensure enforceability; illness leave doesn’t void contracts but complicates timing. Bay View Law assists in drafting compliant agreements.

Note: Common law notice often 1 month per year of service, capped at 24 months.

Obligations Under Human Rights Code

While Employment Standards Act sets minimums, the BC Human Rights Code prohibits discrimination based on physical or mental disability. Serious illness triggers duty to accommodate up to undue hardship, potentially extending beyond 27 weeks. Termination without accommodation risks Tribunal complaints alongside wrongful dismissal suits.

Bay View Law’s Expertise in BC Employment Matters

Bay View Law specializes in BC employment law, guiding employers on compliant leave management and employees on maximizing severance. Our team stays abreast of amendments like these to deliver strategic advice.

For personalized advice on serious illness leave or any BC employment law matter, contact Bay View Law at bvlaw.ca or call our team today.