Richard B. Johnson
As we head into the second half of 2021 and Phase 3 of BC’s Restart Plan, we are being asked a lot of questions in regard to vaccines and how workplaces will be affected by increasing levels of vaccination, decreasing rates of infection, and changing government health mandates.
One of the biggest questions we’re currently seeing is about time off. Paid sick leave has been a hot topic for the past year, and the BC government recently introduced new mandatory sick leave for all employees covered under the Employment Standards Act.
Vaccine Leave and Mandatory Sick Days
In 2021, the BC government introduced two new policies to provide guidance for employers and employees when it comes to taking time off due to COVID-19 and related issues.
Three Hours of Paid Vaccine Leave
The first of these policies is a mandatory 3 hours of paid time off to allow employees to get vaccinated. This applies no matter how long a person has been employed at a given workplace, and is retroactive to April 19th, 2021, meaning if an employee received a vaccine during work hours at any time after April 19th, they may claim those 3 hours. This paid leave also applies for second doses (3 additional hours).
Some employers want to encourage employees to book their vaccine appointments after work hours. We strongly recommend against this, because encouraging employees to avoid using the 3 hours of leave undermines the spirit of the legislative change — that is, that public health and safety, and achieving herd immunity, are of the utmost priority.
Three Days of Paid Sick Leave
BC Employment Standards also recently instituted a mandatory 3-day paid sick leave to cover COVID-related time off for employees. This paid sick leave may be used by employees who have been diagnosed with COVID-19 and have been ordered to stay at home; or are self-isolating or in quarantine due an exposure concern. Between May 20th, 2021, and December 30th, 2021, any employee who needs to take time off from work due to COVID is entitled to three days off at their usual rate of pay.
Since not all workplaces offered paid sick leave prior to the pandemic, WorkSafeBC is providing a couple of paths for alleviating the potential cost burden on employers. If an employer did not have paid sick leave as a policy and an employee claims the 3-day leave, then that employer can apply to WorkSafeBC for reimbursement of the cost paid to that employee. If an employer did have paid sick leave prior to the introduction of this policy, then that 3 days can be rolled into an employee’s existing banked vacation time. If this is the case, employers can’t apply for reimbursement, as the assumption is that this sick leave would be part of their normal operating costs.
It’s worth noting that both this policy applies to all employees, regardless of how many hours per week they work. What this means is that for part-time and casual employees, the employer will have to calculate the average amount that that employee would be paid in a three-day period to determine the right amount of sick pay. An employer is not allowed to ask for a doctor’s note in these circumstances, however it may be reasonable to check in with an employee to confirm that they are isolating.
It’s not yet clear whether these paid sick days will be eligible to be used for vaccine side effects, but erring on the side of caution we believe it’s safe to say that this will be the case.
Masks and Daily Check-Ins
With vaccinations still underway, much of the BC population has received at least one dose, but many people are still unvaccinated or only partially vaccinated. Because of this, vaccine efforts must still be combined with appropriate measures. Under the Phase 3 Restart Plan:
Employers do not need to maintain their COVID safety plans unless there is a specific, elevated risk;
Employers must ensure that communicable disease prevention basics exist at the workplace such as appropriate handwashing and hygiene practices, sufficient ventilation, and requiring that sick employees remain at home;
Though recommended indoors for everyone 12 years and older who are not fully vaccinated, the mask mandate order was lifted effective July 1st; and
Employees can continue to be returned to the workplace and larger meetings such as seminars are permitted.
Another big question that comes up frequently is whether or not employers can ask if an employee is vaccinated. The answer really depends on what the job duties are and whether vaccination status is directly tied to the job.
A question about vaccination status could potentially be seen as infringing on an employee’s privacy.
You should not ask employees to disclose sensitive medical information unless there is a legitimate reason to ask based on the employee’s specific role and job duties.
In a very physically demanding job, it would make sense to ask an employee or prospective employee about their physical capabilities, such as how much weight they are able to lift and carry. For a typical office job, however, this is unnecessary and invasive since a person’s ability to lift heavy objects has little impact on how well they can work on a computer. The same goes for vaccine status. If the job involves close contact with vulnerable populations (for example, a healthcare-related position), then it might be reasonable to confirm that employees are vaccinated. However, this could be troublesome unless a clear connection exists between the needs of the job and the employee’s need to be vaccinated.
What we are seeing is that people who are vaccinated tend to be proud of the fact, and will often volunteer this information. We always encourage open dialogue and discussion between employers and employees, and if employees wish to disclose that they have received a vaccine dose then they should be allowed to do so openly. Employees talking about getting vaccinated may also encourage more reluctant coworkers to follow suit. Regardless, no employee should be made to feel oppressed or singled-out due to their personal life or choices they make outside of, and unrelated to, work.
While the Reopening is exciting for British Columbians, it can lead to questions. Contact us to discuss!