British Columbia will become the first Canadian province to legislate a minimum of five paid sick days each year for employees covered under the Employment Standards Act (“ESA”). Those covered under the ESA include part-time, temporary or casual ESA employees who have been employed for at least 90 days. The five paid sick days will be in addition to the already legislated three unpaid personal illness or injury days covered under Section 49.1 of the ESA. As of January 1, 2022, ESA covered employees in British Columbia will be eligible to take eight sick days in total, with five paid and three unpaid.
What is it now?
The ESA currently provides employees with three unpaid sick days.
The COVID-19-related sick leave, which gave employees three days of paid sick leave, began in May 2021, and will end on December 31, 2021. Employers were entitled to apply through the Employer Reimbursement Program to be reimbursed for COVID-19-related paid sick leave wages paid to an employee (up to $200 a day per employee for up to three days). Under the new five day paid sick leave, employers will have no reimbursement opportunity. According to the provincial government, more than one million B.C. workers do not currently have access to paid sick leave.
Why this change?
The pandemic has highlighted that when workers don’t have paid sick leave, the negative impact goes beyond the unwell employee; it can also impact their co-workers and employers. Many of the employees who do not currently have access to paid sick leave are essential workers who we have depended on during the pandemic. These employees often work in the service industry and receive lower wages which further restricts their ability to take time off from their employment when they are ill.
At the height of the COVID-19 pandemic, for a period of two-months, workplace virus outbreaks led to hundreds of business being shut down in just the Fraser Health region alone. Workplaces with pre-existing paid sick leave policies, however, saw less workplace transmission of COVID-19.
Provincial Health Officer, Dr. Bonnie Henry, commented on the public health crisis saying, “We have learned in this pandemic how important it is for workers to be able to stay home if they are sick. Paid sick leave is one more way we can support workers and help prevent the transmission of disease. It gives people the means to stay away from work if they’re sick and reduces the risk to their co-workers or others they come in contact with through their jobs.”
Sheila Lewis, Provincial Women’s Manager, Métis Nation British Columbia, said, “Paid sick leave will be particularly beneficial to women who are more likely to be balancing work and family responsibilities. Sick leave will help women – especially Indigenous women – reattach to the labour market, providing them more stability and security, while benefiting employers through improved productivity, loyalty and recruitment”.
To decide how many days of paid sick leave should be legislated for under the ESA, the Province consulted with workers and employers to determine what currently exists in the way of paid sick leave. More than 60,000 British Columbian’s participated in providing information. The Province asked the population sample their opinion on which amount of time for sick leave they thought would be best: three, five, or ten days of paid sick leave.
The feedback from the workplaces that already provide paid sick leave found that most workers take between zero and five days of sick leave each year.
What are the implications?
The financial burden of the paid sick leave falls entirely on the employer. This will add costs to an employer’s bottom line. The alternative, however, is that an employee comes to work sick, potentially spreads a virus and the business would be forced to close, which could cause an even greater financial strain for the employer. An employee is not entitled to carry over their unused sick leave. Any sick leave not used will not be added to the following year.
If an employer is unionized and its collective agreement does not meet or exceed the ESA legislated paid sick leave, the new requirement will automatically be incorporated into the collective agreement. The total number of paid sick days would be brought up to the new legislated standard.
Can I use my sick leave to care for an ill loved one?
No. The leave only applies to personal illness and injury. There are already job protections that exist to support someone in a similar situation.
Will sick notes be required?
The legislation says employers are entitled to reasonable proof that an employee is sick, however, if an employee needs this leave without warning, they don’t need to give the employer advance notice. If an employee can’t work due to illness or injury, they should notify their employer as soon as they can and provide the reason. An employee does not need to provide proof of their illness before their leave. It would be wise for employers to create a system that provides room for flexibility and in-the-moment judgment instead of requiring employees to provide a doctor’s note for each leave.
An employee should tell their employer when they are planning to come back to work. While an employee is on a leave, the employer cannot terminate, lay off, or change the job conditions of the employee. If when the employee returns from a leave and the employer can’t give them their job back (or one similar), the employer may have to pay compensation for length of service based on the last day of employment.
Who is covered?
The ESA does not cover federally regulated sectors, self-employed workers, and employees in professions and occupations specifically excluded from the ESA. Right now, federally regulated employees can access three days of paid leave per year.
Find out if the ESA applies to you here.
We will continue to update you as the sick leave entitlement comes into force. However, we are here to help if you have questions in the meantime. Contact us!