Written by Geoffrey Howard, Founder and Principal
Howard Employment Law

The BC government passed amendments to the Employment Standards Act (ESA) which allowed the government to impose mandatory paid sick leave days for all employers earlier this year. After conducting a survey of employees and employers, the BC government has announced that, starting January 1^st, 2022, all employees who have completed 90 consecutive calendar days of employment will be entitled to 5 days of paid leave per “employment year” for any personal illness or injury.

While some details of how this major new paid leave will work are as yet unclear and may emerge from regulations, the following appears clear:

1. All employees who have completed 90 days of employment will be entitled to the five paid sick days per “employment year”. Apparently, there will be no pro-ration of the leave entitlement for part time employees or employees hired for temporary periods of less than a year;
2. The full five days of paid sick leave will be immediately available once the qualifying 90 days of employment are met i.e. employers cannot require employees to “earn” the sick days over the course of the year. For existing employees with more than 90 days employment as of January 1, 2022, they will start the year with the full 5 sick days available to them;
3. For employees who have variable earnings, the amount of sick pay is calculated in the same way as statutory holiday pay by taking the wages earned in the 30 days preceding the leave (exclusive of overtime) by the number of days worked or taken as vacation during that time;
4. Where sick leave is requested, employers can request and employee must provide reasonable proof of illness or injury. This could include requesting a doctor’s note;
5. The 5 days of paid sick leave are in addition to the 3 days of unpaid illness or injury leave currently provided under the Act. Thus the ESA effectively mandates a total of 8 days per year of statutorily protected sick leave. It is important to note that longer absences caused by a disability are subject to the duty to accommodate under the Human Rights Code; and
6. Unused paid sick days will not “carry forward” from year to year, nor will they be payable on termination of employment.

It is unclear whether sick pay must be provided where the absence is due to a work-related injury or illness covered by WorkSafe benefits. Common sense would dictate no sick pay need be paid in such situations but the amendment is silent on this point. It may be that a workplace-related injury is not considered a “personal” injury or illness.

As with all statutory leaves:

1. Employers must grant the leave on request to entitled employees.
2. Employers must not terminate or change an employee’s conditions of employment because of the leave.
3. Once the leave ends, the employee on leave must be placed in the position they held prior to the leave or in a comparable position.

This new requirement introduces a substantial new payroll overhead cost for the majority of BC employers who offered either no paid sick pay or less than 5 paid sick days. According to Statistics Canada, employees lost an average of 9.7 days of work due to illness or injury in 2020 and 8.9 days in 2019. This means that, on average, employers should expect most employees to take the full 5 paid sick days each year. On the other hand, the government argues that paid sick leave will encourage employees to avoid coming to work when sick and both potentially aggravating their illness and infecting others. Paid sick leave may improve company morale and avoid lost productivity due to transmission of disease in the workplace.

Employers need to immediately review their sick leave policies and update them to ensure compliance. Those who currently do not offer paid sick leave will now have to comply with ESA minimum mandated sick pay obligations. Employers who offer less than 5 paid sick days will have to increase their allowance. Those employers who implemented broader “paid time off” (PTO) policies which allowed employees to claim paid days off for a broader variety of personal reasons including sickness will need to revise them to ensure that 5 days of PTO are dedicated exclusively to sick days. Failure to do so may result in a situation where an employee uses all her PTO days for other reasons then is legally entitled to claim 5 paid sick days on top of her PTO allowance.

We recommend that all BC employers contact us to discuss updating their employee handbooks, or any other concerns they may have about the new obligation prior to January 1, 2022.