You are here

Reservists' Leave Provisions Enacted

In British Columbia, new unpaid leave provisions applying to armed forces reservists are now in force. These provisions provide largely similar job protections as those already in existence for pregnancy (maternity) leave, parental leave, family responsibility leave, compassionate care leave, bereavement leave, and jury duty.
 
There are approximately 30,000 part-time and full-time reservists with the armed forces at any given time.   Their military (and emergency response) duties and training obligations can require them to be absent from home, and work, for extended periods of time.
 
B.C.’s Employment Standards Act now provides that an employee who is a reservist is entitled to unpaid leave while deployed on a Canadian Forces operation outside Canada. The leave is also provided if the reservist is engaged in pre-deployment or post-deployment activities (whether inside or outside the country) or has been deployed inside the country to assist in dealing with an emergency.
 
The employee’s obligation is to provide the employer with 4 weeks’ written notice of the beginning and end dates of the intended leave. If that isn’t possible in the circumstances, the employee must provide as much notice as is practicable. 
 
The employee is also obligated to provide the employer with notice if the deployment is either extended or will be ending early. The Act does not establish any specific limitations on the possible duration of a reservist’s leave.
 
During a reservist’s leave, the employment is considered continuous for the purposes of the Act. That means for the purpose of calculating entitlements such as annual vacation entitlement, termination entitlements, and for calculating other employment entitlements (such as pension and medical plans and wage increases).
 
The employer must not terminate the employment or change a condition of the employment because of the occurrence of the leave. When the deployment comes to an end, the employer must return the employee to her former position (or one which is comparable).
 
There is one notable distinction between reservists’ leave and the other leaves provided in the Act (pregnancy, parental, family responsibility, compassionate care, and bereavement leave as well as jury duty). In those other leave scenarios, the employer must continue to make payments to a pension, medical or other plan as though the employee were not on leave.
 
This obligation does not apply to reservists’ leave. I’m sure there is a good reason for excluding armed forces reservists from this entitlement, but at the moment it’s a mystery to me.
 
The introduction of reservists’ leave protections in the Employment Standards Act, combined with recent amendments to the Canada Labour Code, mean that reservists in B.C. are protected regardless of whether their employment falls under federal or provincial jurisdiction.
 
The Canada Labour Code now contains its own set of job protections for reservists. Although similar to the B.C. provisions, they are not identical and should be referenced specifically in relation to employees whose employer is within the federal jurisdiction.
 
The federal Code imposes the requirement that reservists must have been employed continuously for 6 months before becoming entitled to unpaid leave. Similar to B.C., employees must provide 4 weeks’ written notice of the leave unless there is a valid reason for not doing so. If required by the employer, the employee must provide documentary proof of the requirement for the leave.
 
In certain instances, the federal Code indicates that employees may not be entitled to reservists’ leave. This would be the case if taking the leave would adversely affect public health or safety or if it would cause undue hardship to the employer.
 
According to the Code, an unpaid reservist’s leave can be for a maximum of 15 days if the leave is for the purpose of annual training. There is no specified maximum duration for a leave while a reservist is taking part in a designated operation or has been called out for service.
 
As in B.C., the employment is considered continuous while the reservist is on the statutory leave and seniority continues to accumulate. The employee must be returned to the same position she held before the leave commenced or, if there is a valid reason, to a comparable position with the same wages and benefits.
 
Also similar to B.C.’s provisions, the Code states that the employer is not required to make contributions to the employee’s pension or benefits plans during the leave period.
 
These changes to the provincial and federal employment standards legislation ensure that reservists working in B.C. will, in most instances, have a job to return to upon the conclusion of their assignment. For employers, that’s a small price to pay in thanks for the high-risk service these dedicated individuals provide to their country.
 
 
 
Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, log on to http://www.pushormitchell.com/.