What do recent changes to the Employment Standards Act mean for BC workers?

The current COVID-19 pandemic and responses to it have shone a light on the depth and breadth of precarious labour in BC, across Canada, and internationally. For many workers, the variety of restrictions and responses imposed, while integral to an effective response to the pandemic, have placed already precarious employment in further jeopardy.

Many workers in precarious jobs—jobs often characterized by low wages, a lack of employment security, a lack of stability or consistency in hours, and a lack of benefits—live paycheque to paycheque, and a disruption or reduction in income may mean the difference between paying rent or not, or having enough groceries or not. In addition, workers in many different kinds of precarious jobs do not have access to paid sick days. This means that precarious workers are more likely to go to work when ill. Finally, most workers in the province who are not unionized are engaged in “at will” employment, which means they can be terminated at any time, with proper notice or severance in lieu thereof. For workers who fall ill, or whose business must shut down, this places their future job security and tenure in jeopardy, as well. 

The BC Government announced a suite of responses on March 23 aimed at protecting workers affected by the current COVID-19 pandemic and its ripple effects. First, the government announced a one-time, tax-free payment for individuals whose ability to work has been affected by the outbreak. This may do some work to supplement current access to and limitations of the federal Employment Insurance programs, and to help precarious workers avoid further financial strain in the coming months.

The BC Government has also instituted changes to the Employment Standards Act (ESA) to protect workers’ job security who have to take time off of work due to illness, self-isolation, or caregiving obligations, during the pandemic, and to provide for up to three days of unpaid sick leave job protection permanently under the legislation. These measures help guard against the risks posed to job security and tenure for precarious workers, and all workers engaged in at-will employment, during and after the pandemic.

While the government’s recently announced changes are an important first-step, more can be done to protect workers, especially those who are already most at risk in respect of their employment. 

First, while numerous financial supports have been created and extended for workers during the pandemic, including the one-time payment announced by BC and the federal expansion of EI for COVID-19-related job interruption or loss, the issue of illness is not one that arises only during a public health crisis. The introduction of job protection for illness of up to three unpaid sick days would be significantly strengthened in achieving its purpose of protecting workers and enabling them to take sick leave when it is needed if these days were required to be paid by an employer, just as employers are required to pay minimum vacation days under the Employment Standards Act. 

Precarious and low-wage workers, in particular, may choose to attend work while ill not only due to fear for job security, but importantly because they cannot manage a reduction in income. This was specifically raised as a reason why, for example, a worker at the Lynn Valley Care Centre had continued to go to work even as she felt a cold coming on. 

Paid sick leave is a measure being called for by a variety of actors, both in response to this pandemic, and generally as an important step forward in creating better working conditions, especially, in precarious jobs. When sick days go unpaid, workers who are highly dependent on income from each paycheque, and who are unable to cope effectively with reduction or disruption in income, are unlikely to stay home. This is of heightened significance in the current circumstances, though it is an important consideration in regular circumstances, as well, and studies indicate that paid sick leave has a demonstrable effect. Similar campaigns in the US have led to a commitment by at least one large corporation to extend permanent paid sick day benefits to all workers.

Second, the extension of job protection for workers who must take leave during the COVID-19 pandemic is significant, and it prevents an employer from terminating their employment during this leave. This protection would extend security to an even greater number of workers if it applied to businesses that were shut down during the pandemic, and required those businesses to extend a “recall offer” to laid-off workers when the business resumes, before it attempts to hire new workers. This means that a worker who is laid-off if a business, such as a restaurant, has to shut-down or significantly reduce its operation, has a guarantee of the option of getting their job back when the restaurant re-opens or increases its operations in the future. This model already exists in unionized environments, and formalizing its application to all workplaces under the ESA, at least in respect of the current pandemic response, would assist workers by creating certainty and security in respect of their future employment.

The BC government has taken important first steps towards protecting workers, many of whom are engaged in precarious labour. Extending further entitlements will better enable workers to access these protections. Paid sick days will enhance the likelihood that a worker can and will stay home when ill. Requiring recall offers for laid-off workers in industries affected by the COVID-19 pandemic will create a sense of security and certainty at a time characterized very much by a lack of each. Most importantly, these measures will better protect precarious workers, who are already at greater risk and will likely suffer more extensively in the current climate.

But what about the people who are still working on the front lines during the pandemic? Like food processing workers, grocery store cashiers, warehouse workers, couriers, who are working to meet our most basic needs while putting their own lives at risk? Check out this recent analysis from our Ontario Office on the status of front line workers and what we need to do to better protect them by Sheila Block and Simran Dhunna.

Topics: COVID-19, Economy, Employment & labour, Health care