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Will bereavement leave be lengthened in the case of stillbirths or late term miscarriages?

Today in the legislature we debated Bill 6 – Employment Standards Amendment Act, 2018 at committee stage. As I mentioned earlier, this bill provides new, extended and more flexible maternity, parental and compassionate care leave provisions that would meet or beat standards set across Canada.

As stated in the BC Government news release issued with the introduction of the bill, it:

“will provide up to 104 weeks if a worker’s child under 19 years of age dies under any circumstances — a significant addition to the three days of unpaid bereavement leave currently available.”

What was unclear to me is the extent to which the extended bereavement leave would be applicable in the tragic examples of still birth or late term miscarriage.

To seek clarification, I posed a couple of questions to the Minister of Labour during committee stage of the bill. He made it clear that the extensions do not apply to existing provisions already in the act. Nevertheless, I got the distinct sense that he was open to consider exploring this in the future.

Below I reproduce the text and video of our exchange.

Text of Exchange

A. Weaver: I have but one question, dealing with section 4. It’s with respect to 52(4) and the leave request in death of a child.

First off, please, let me commend government for bringing this forward. It’s overdue, and it’s well received. I do appreciate this legislation.

With that said, there are two aspects that I was wondering if the minister has had time to think about. Number 1 is stillbirths. The bereavement that a family can actually feel from a stillbirth is profound. The question is, does this legislation take into account stillbirths? Number 2 is late-term miscarriages. Again, knowing people who have suffered through late-term miscarriages, a child can be very recognizable, and funerals can happen, and bereavement is very, very real and long-lasting.

My question to the minister is: would this legislation cover compassionate leave for both cases — of stillbirth and late-term miscarriages — where bereavement leave is sought?

Hon. H. Bains: The stillbirth part of the leave we haven’t changed. It still is under the old act.

What we are dealing with through this act is a child born, dies or disappears. So 52 weeks — 104 weeks. But that part on stillbirth, we haven’t touched and we haven’t changed.

A. Weaver: Further to explore this then. Is there existing legislation that the minister can appeal to that would take into account a request for bereavement leave that falls under the term of late-term miscarriage. Again, let’s suppose a very sad and unfortunate event occurs, and at seven months, a miscarriage occurs.

Is there legislation that would allow the mother or the father or parents to actually seek bereavement leave using existing law — that is, that would be changed, like this, to have an extended period of time?

Or, with the case of stillbirth, it might be slightly different. I recognize that that might be covered by existing law. But if the minister could expand upon these for me, that would be helpful.

Hon. H. Bains: The existing act says this: an employee is entitled to up to six additional consecutive weeks of unpaid leave if, for reasons related to the birth or the termination of the pregnancy, she’s unable to return to work when her leave ends under subsection 1 or 2.

So there are certain coverages under the current act. But what we were talking about this new act of child death or child disappearance, we weren’t dealing with stillbirth or termination.

A. Weaver: I do appreciate that, and I thank the minister for bringing that forth. As we move forward, I recognize — and I hope the minister and the ministry recognize — that this is an issue that I think, frankly, should be treated similarly, that of stillbirths and late-term miscarriages. They are very real children and very real bereavement that occurs. If a baby were born and were to die one day after birth, then that baby would be subject to a different length of period of time than a baby who happened to be born within a stillbirth.

Maybe, as we move forward, the ministry might think about exploring this because I know many personal cases, and I’m sure members here also know personal cases, where the very real bereavement and unpaid leave is taken but protection for that is important.

Hon. H. Bains: Member, thank you very much for your point — well-taken.

As you know, these are the changes, as I said earlier, that are to match the EI benefits changes that the federal government brought in. There are parents that can take advantage for the period that they are entitled to the EI benefits.

But I must tell you that I’m working to look at the larger piece of the Employment Standards Act. There are a number of consultation pieces going on. B.C. Law Institute is one of them that is doing it. They will looking at a number of different areas to bring our employment standards and employment laws to the modern days and the changing world of today.

I think you can expect that we will be talking to you a lot more and others to make sure that we bring those laws up to date.

Video of Exchange

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