Sick Leave under Employment Standards
The primary piece of legislation that governs workers in British Columbia and sets minimum standards for working conditions is the Employment Standards Act, RSBC 1996, c 113 (the “ESA”).
Section 49.1 of the ESA sets out in what circumstances an employee qualifies for personal illness or injury leave. After 90 consecutive days of employment, an employee is entitled to 5 paid days and 3 unpaid days of job-protected sick leave in a calendar year.
Duty to Accommodate under Human Rights
Sometimes, employees may require more time off than the amount granted under the ESA, especially if they have physical or mental disabilities. In such circumstances, an employer has a duty to accommodate employees’ disabilities under the Human Rights Code, RSBC 1996, c. 210, by considering what steps they can take to maintain the employment relationship. This may come in the form of allowing employees to take time off work for medical care and recovery, or modifying employees’ duties and/or work schedules to better meet their needs. For example, an employee may require a wheelchair for mobility purposes, and an employer can accommodate this employee by building a ramp leading up to the workplace to make it wheelchair accessible.
That said, an employer’s duty to accommodate is not without limit. If it can be demonstrated that the required accommodation efforts would cause undue hardship on the business, whether that be financially and/or operationally, then an employer has satisfied its duty to accommodate. For instance, employers do not have to hold a position open indefinitely while an employee is on leave. However, any decisions to terminate an employee’s employment should be made only after a thorough analysis.
As well, employees must also participate in the accommodation process by providing medical information, staying in touch while on leave, and being open to alternative accommodation arrangements.
Duties to Cooperate and Maintain Employment under WorkSafeBC
Furthermore, effective January 1, 2024, employers and workers now have a legal duty to cooperate with each other, and with WorkSafeBC, to identify and make suitable work available to workers in a timely and safe manner following a workplace injury. As well, an employer that regularly employs 20 or more workers and has employed an injured worker for at least one year before their workplace injury, has an obligation to maintain that worker’s employment.
For more information regarding these new WorkSafeBC requirements, please see the following: Workers: Duty to cooperate and duty to maintain employment – WorkSafeBC.
Know Your Rights and Responsibilities
Whether you are an employee who has been let go in any part due to a medical leave or limitations on your ability to work, or an employer considering terminating an employee who is on medical leave, it is important to have effective legal support.
If you need any assistance or would like to discuss this issue, please reach out to us. We are here to help!
