Background Information
Amendments have been made to the Employment Standards Act (the Act) granting all employees, including those covered by a collective agreement, with a protected leave:
Section 49.01, entitled “Serious Personal Illness or Injury — Up to 27 Weeks Unpaid Leave.” This provision establishes a new entitlement of up to 27 weeks of unpaid leave within a 52-week period for employees who are unable to work due to their own serious illness or injury. The section also outlines the requirements and process for accessing this leave.
The Process for an Employee to Obtain This Leave
To qualify for this leave, an employee must obtain a medical note (the Note) from a health practitioner (medical practitioner, nurse practitioner or any other prescribed professional) that confirms all of the following:
- the employee is unable to work due to medical reasons;
- the date on which the employee's inability to work
- began, if the employee is already unable to work, or
- is expected to begin, if the employee is not yet unable to work;
- the date on which the employee is expected to be able to return to work and after which the employee is not expected to take any further leaves.
The employee must provide the Note to their employer as soon as practicable. The Note is not required before the employee begins unpaid leave. However, if the Note is not provided, the employee may not be eligible to receive the enhanced entitlements under the Act.
What does the Amendment mean for your agency?
An employee who is covered by a collective agreement and who is on serious personal illness or injury leave is entitled to have service-related benefits continued and have their health and welfare benefits paid beyond the 20-day grace period stipulated in Article 20.7 for up to 27 weeks.
If an employee’s unpaid sick leave extends beyond the 20-day grace period found in Article 20.7, and up to the 27-week period, they continue to be covered by employer-paid health and welfare benefits, continue to accrue continuous service for the purpose of vacation entitlement levels, and will move to the next increment step in the wage grid as if they were still working. See Section 56 of the Act, entitled “Employment deemed continuous while employee on leave or jury duty”.
This leave is treated in the same manner as other leaves under Part 6 of the Act (e.g, maternity and parental leaves).
Moreover, an employer cannot terminate an employee who is on a serious personal illness or injury leave. Upon the employee’s return to work, the employer must place the employee in the position they held prior to taking leave, or in a comparable position. See Section 54 of the Act, entitled “Duties of employer”.
Questions and Answers
- How is the 52-week period calculated?
The 52-week period is calculated from the date the employee’s leave begins, not by the calendar year. An employee does not become entitled to a new 27-week serious illness or injury leave until 52 weeks have passed from the start of their initial leave.
For example, if an employee begins a 27-week leave on February 1, 2026 and returns to work after 13 weeks (approximately May 3, 2026):
- The employee would still have 14 weeks of unpaid leave available within that same 52-week period; and
- The employee would not be eligible for a new 27-week entitlement until January 31, 2027 (52 weeks from the original start date). A new leave period would require a new Note.
If an employee returns to work before using the full 27 weeks, they may access the remaining balance of their entitlement during the same 52-week period without providing a new Note, provided that the employee is unable to work for the same reasons as stated in the original Note. If the sick leave is for a different condition, a new Note is required.
- Are the 27 weeks in addition to the 20-day grace period for benefits allowed under Article 20.7?
No. The 27-week entitlement includes the 20-day grace period, and is not in addition to the 20-day grace period.
Please note that this is an unpaid leave. Employees may also continue to access other available entitlements, such as sick leave (Article 19 in the collective agreements), and the 27-week period would not commence until the sick leave (Article 19 in the collective agreements) is exhausted.
- Is this change retroactive to employees who have been on unpaid illness leave?
The change to the Act came into force on November 27, 2025. The new section does not apply retroactively to employees who commenced an unpaid leave of absence prior to November 27, 2025 for any period before this date. If an employee commenced their leave prior to November 27, 2025 and wishes to be covered by the new enhancements, they must make a new request as soon as practicable and meet all the eligibility requirements, including the presentation of a valid Note.
Employees commencing a leave on or after November 27, 2025, would be covered by the new section and its enhancements for the allowable duration of the protected leave period.
- What do I do if an employee says they’re on a serious personal illness or injury leave but has not provided a doctor’s note that meets the requirements of the Act?
The Note is a mandatory requirement for an employee to access the leave prescribed by the Act. While they can go on the leave initially without the Note, as soon as practicable, the employee must provide the Note. Without the Note, the employee is on unexplained absence and may be subject to discipline through your attendance management processes.
- Under the collective agreements, employees who are on WorkSafeBC (WSBC) leave are considered to be on an unpaid leave for sickness. Do the amendments to the Act now include a protected unpaid leave for this purpose?
Assuming that the employee on WSBC unpaid leave meets all of the requirements under Section 49.01 of the Act, they would be on this new protected unpaid leave. As a result, the service-related benefits would continue to accrue and the employer-paid health and welfare benefits would continue to be provided for the allowable period. In this respect, the Act overrides the terms of the collective agreements.
Should you have any questions about this bulletin, please contact your CSSEA Advocate/Consultant. Additional information can also be found in this Employment Standards interpretation guide.