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I am a sole proprietor since 2008 of an essential service (auto repair) in BC. My only employee of 3 yrs did not request to take Covid leave just assumed he was entitled to it. Does he need to request this leave just like any other leave of absence? I have asked him to return to work multiple times but says he doesn't have childcare, however, both parents are essential service workers and emergency childcare should be available to them. Also when he does return, can I have him sign an employment contract with no changes to his duties, hours or pay? We haven't had one in place throughout the duration of his employment only verbal policies etc. Over the past year, I have documented multiple insubordination instances, arguments with profanities in front of clients, failures to adhere to verbal policies however unsure if severe enough to terminate for cause but definitely a toxic workplace. I now realize the importance of a contract, I need to protect my business. Thank you!

Under s. 52.12 of the BC Employment Standards Act (ESA), an employee may request an unpaid leave under certain circumstances. Regardless of the employer’s answer to this request, if necessary conditions are met he is entitled to take it.

You mention that your employee says that he cannot come to work due to a lack of available child care.

Under the ESA, an employee providing care to a child under their care because of the closure of a school/daycare/similar facility would qualify for this leave.

It seems that whether or not they are entitled to the continued to leave depends on whether there is any child care available.

You mention that both the parents are essential workers, and you are correct in that temporary emergency childcare is available with a priority given to certain essential services. You can see the list here: https://www2.gov.bc.ca/gov/content/family-social-supports/caring-for-young-children/child-care-response-covid-19/child-care-response-covid-19-parent/child-care-response-covid-19-parent-form

There may be a waiting list, and he may be waiting for a spot for his children there. As long as the employee is unable to find childcare, he will likely be entitled to continue taking the unpaid leave of absence.

However, section 52.12 of the ESA also says that, if requested by the employer, the employee must, as soon as practicable, provide the employer reasonably sufficient proof that necessary circumstances as described above apply to the employee. In your case, this means that you are entitled to ask the employee for proof of his application to these programs (whether screenshots, emails, etc.) and answers received thus far.

Should the employee fail to take necessary steps after you advise him that he has to, you may be able to take disciplinary steps as needed for the leave as it is no longer protected.

Regarding the second portion of your question, regarding employee misconduct and the possibility of applying an employment contract, it is difficult to provide an answer without some specifics about the situation, but I will provide some general principles below.

Generally speaking, any and all misconduct should generally be cataloged and recorded to justify disciplinary action up to and including termination for just cause.

Regarding applying a new contract to an existing employee, it is possible, but there are some requirements that are imperative to be met in order for it to be enforceable.

Tackling these latter questions is something we would be happy to help with if you would like to pursue them.
Lior Samfiru
Direct Tel (Toll Free): 1-855-821-5900     Email: lior@stlawyers.ca     Web: www.stlawyers.ca
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