BC Ministry of Labour announces new paid leave for illness and injury under the Employment Standards Act, effective January 1, 2022
As of January 1, 2022, provincially-regulated employers in British Columbia will be required to provide five days of paid sick leave each year to all employees covered by the Employment Standards Act (the “Act”). This paid leave is in addition to the three days of unpaid sick leave currently required and is distinct from temporary paid COVID-19 leave. While BC is the third province in Canada to legislate paid sick days, its new sick leave program offers the most paid sick days in the country.
In a previous posting, we reviewed Bill 13 – 2021: Employment Standards Amendment Act (No. 2), 2021 (“Bill 13”), which amended the Act to provide temporary COVID-19-related paid leave and permanent paid sick leave starting January 1, 2022. The COVID-19 related leave will only be in effect until December 31, 2021, after which the section will be repealed and replaced by permanent paid sick leave benefits on January 1, 2022. The number of permanent paid sick days was unspecified at the time Bill 13 was passed.
On November 24, 2021, the BC Government announced that the Act will provide for five paid sick days annually.
Employees who have worked for their employer for at least 90 days will be eligible for up to five days of paid leave and three days of unpaid leave per year for any illness or personal injury. Neither paid nor unpaid leave carry over year-to-year if unused by the employee. The leaves apply all employees who are covered by the Act, including full-time and part-time employees.
The leaves do not require employees to give specific advance notice, but employees are required to advise their employer as soon as they can. Employers are entitled to request reasonably sufficient proof of the illness or injury that necessitates the leave.
Paid sick leave days do not need to be taken consecutively, and any amount of sick time taken during any day counts as one day of sick leave, unless the employer and employees agree otherwise.
Employers are required to pay employees an average day’s pay for paid sick leave, which is determined by the formula:
amount paid ÷ days worked
- the “amount paid” is the amount of wages earned for work performed within the 30 calendar day period preceding the leave, including vacation pay paid out or payable for vacation within that period, less any amounts paid or payable for overtime, and
- “days worked” is the number of days the employee worked or earned wages within that 30 calendar day period.
The BC Government website provides additional guidance on how the paid sick leave will impact both employees and employers.
Employers that already offer Paid Sick Leave Benefits
For employers with collective agreements or policies that already provide paid sick leave, there is no need to increase or change their sick leave benefits if their current sick leave provisions, considered as a whole, meet or exceed the requirements of the Act. Employers with paid sick leave benefits that do not meet or exceed the requirements of the Act will have to increase their benefits to at least meet the requirements of the Act. For collective agreements that provide less paid sick leave than the Act, the section of the Act prescribing paid leave is deemed incorporated into the collective agreement. We note, however, that employers are not required to provide the new statutory sick pay benefits on top of, or in addition to, sick pay benefits they already have in place.
The number of paid sick days was determined after a comprehensive consultation and research process. The Province consulted workers and employers in BC to gather information on current sick leave practices and solicit feedback on three options – three, five or ten days of paid sick leave – that were being contemplated. The research found that approximately 60% of employers do not provide sick leave and, of employers that provide paid sick leave, most employees take between zero and five days of sick leave each year.
The BC Government also conducted research regarding other jurisdictions that have mandated paid sick leave and found that businesses experienced less cost increases than expected to implement such leaves. Further, businesses in these jurisdictions realized significant benefits from introducing paid sick leave, including “increased productivity and retention of trained staff, reduced risks of injury, improved morale and increased labour-force participation.”
While numerous provinces enacted paid or unpaid COVID-19 leave policies, only two other provinces currently have mandated permanent paid sick leave: Quebec and Prince Edward Island. Section 79.7 of Quebec’s Act Respecting Labour Standards provides for two paid sick days after three months of employment. These days can also be used to take care of a relative or person for whom they act as an informal caregiver. Section 22.2(4) of Prince Edward Island’s Employment Standards Act provides one paid sick day, in addition to three unpaid sick days, after five years of continuous employment.
The importance of paid sick days became especially evident throughout the COVID-19 pandemic. The BC Government’s recent announcement highlighted this observation, stating that workplaces with pre-existing paid sick days saw less workplace transmission during the height of the pandemic. The introduction of permanent paid sick leave aims to reduce workplace spread of not only COVID-19, but all infectious diseases, benefitting both employers and employees alike.
Advice for Employers
Starting January 1, 2022, employers who do not provide paid sick leave, or who provide less than five days of paid sick leave, will need to implement programs or top-up existing programs to meet the statutory sick pay requirements. We recommend that employers with current sick pay programs clarify with their employees that their existing paid sick benefits are not in addition to the five days required by the Act.
Also, employers who currently offer general paid time off such as flex days or paid time off (PTO), may want to clarify that at least five days are allocated to the statutory sick leave requirement to avoid having to pay additional paid sick days if an employee uses their flex days or PTO for other reasons.
If you have any questions about this new paid leave for illness and injury in British Columbia, please do not hesitate to contact McCarthy Tétrault’s labour and employment group.