Five Days of Annual Paid Sick Leave Coming to BC Workplaces
This article was written and provided by Ryan Anderson and Eric Kroshus, Mathews Dinsdale
The British Columbia Government will institute a new, permanent paid sick leave entitlement, effective January 1, 2022.
This new entitlement will make all employees covered by the Employment Standards Act (the “ESA”) eligible for five days of paid sick leave - that is, paid leave for absence due to personal illness or injury. This new sick leave entitlement is currently the most offered by any government in Canada, although the Federal government is expected to imminently introduce a ten day entitlement for federally regulated workplaces.
Currently, the British Columbia ESA provides employees covered by the legislation with an entitlement to three unpaid personal illness or injury days per year. The newly announced five day paid leave entitlement will be in addition to the existing three day unpaid leave entitlement.
Employers cannot require an employee to take unpaid sick leave first - it is up to the employee to choose whether they will utilize their paid or unpaid leave entitlement. Once an employee has used up all eight days of paid and unpaid leave provided under the ESA, employers will need to deal with continuing absences in the usual course, by providing access to whatever short or long term disability benefits that may be available, if any, and taking care to meet the duty to accommodate pursuant to the Human Rights Code if the absence is associated with a disability.
To qualify for paid sick leave, employees must have been employed for at least 90 days (regardless of how many hours they have worked) and be covered by the ESA. All such employees are eligible - including full-time, part-time, casual and seasonal employees. Even if an employee only works two days a week and is not expected to remain employed for an entire year, they are still entitled to the full five days of paid sick leave after they have been employed for 90 days. In other words, there is no pro-rating.
Employers are permitted to ask an employee for sufficient proof of illness or injury, which an employee must provide as soon as possible. In most cases, this means an employee can be required to provide a doctor’s note confirming that their own illness or injury prevented them from working. Employers should ensure their employees understand that paid sick days cannot be used to care for members of their family; other unpaid leave provisions in the ESA contemplate this sort of thing (i.e., Family Responsibility Leave).
If an employer already provides paid sick leave, then they must only ensure that the current entitlement meets the minimum requirements of the new ESA provisions - that is, the new paid sick leave provided under the ESA is not a benefit that must be provided on top of existing sick leave provisions in an employment agreement or policy. In a unionized environment, the new paid leave entitlement will not apply where a collective agreement contains paid leave provisions which, when considered together, meet or exceed an employee’s leave entitlements under the ESA.
The three day paid COVID-19 leave that has been available under the ESA since May 2021, and funded by the Government in some circumstances, ends on December 31, 2021, when the new paid leave entitlement becomes effective. After January 1, 2022, employers will be entirely responsible for the cost of this new paid “sick leave” benefit. This will add a significant new expense for many employers.
The paid sick leave entitlement is based on an “average day’s pay”, regardless of how many hours the employee was scheduled to work on the day they were absent. An average day’s pay is calculated by totalling all wages earned in the 30 calendar days before the first day of absence (including salary, commission pay, statutory holiday pay and paid vacation, but not overtime pay) and dividing that total by the number of days the employee worked or earned wages (e.g. on vacation) in the previous 30 calendar days. It is important to note that any unused paid sick days cannot be banked or rolled over into future years, and employees are not entitled to have unused sick days paid out at year end or upon termination of employment.
We expect further details concerning the new entitlement will be released before the January 1, 2022 implementation, so employers should be mindful of further developments related to this issue.