On May 11, 2021, the BC Government introduced an amendment to the Employment Standards Act (the “Act”), Bill 13 – 2021: Employment Standards Amendment Act (No. 2) (the “Bill”), which seeks to establish three days of paid leave for employees who qualify for COVID-19-Related Leave under s. 52.12. The Bill received Royal Assent on May 20, 2021 and became law.

Employer are now required to pay an employee who takes a COVID-19-Related Leave for three days during the employee’s leave. For the remainder of the COVID-19 Related Leave, the employee will be on an unpaid leave.

Applicability

The paid leave applies to any employee whose employment is governed by the Act and qualifies for COVID-19 Related Leave. There are no minimum service requirements. The BC Government website indicates that the paid leave only applies to employees and employers who do not already have a paid sick leave benefits plan.

Paid COVID-19 Related Leave will only be in effect until December 31, 2021, after which, the section will be repealed.

Average Day’s Pay

For three paid days, the employer must pay an employee at least an average day’s pay, which is determined by the formula:

amount paid ÷ days worked

where

• 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.

Collective Agreements

For employers with collective agreements in place that have provisions respecting paid leave that, considered together, meet or exceed the requirements above, the provisions of the collective agreement apply. Otherwise, the section prescribing paid leave is deemed incorporated into the collective agreement.

Reimbursement Program

The BC Government has indicated on its website that workplaces that do not have an existing sick leave program can be reimbursed by the Province up to $200/day. WorkSafeBC will administer the reimbursement program, but the program is not part of the workers compensation system and will not impact the employer’s WorkSafeBC premiums or accident fund.

The website advises that details on the reimbursement program and how to register will be available in June.

Paid Illness or Injury Leave

The Bill also has a section that will amend s. 49.1 of the Act to include an unspecified number of paid days of personal injury or illness leave, in addition to three days of unpaid leave, for employees who have been employed for 90 consecutive days. This section will not come into force until January 1, 2022, but signals to employees and employers that paid sick leave days are likely here to stay in BC, even after the COVID-19 pandemic.

Currently, employees who have worked for their employer for 90 consecutive days are entitled to up to three unpaid days of personal illness or injury leave.

Paid Vaccination Leave

The introduction of the Bill follows the recent introduction of paid vaccination leave, which came into force on April 27, 2021 with retroactive application to April 19, 2021.

Employees can take up to three hours of paid leave to be vaccinated against COVID-19, and, if necessary, may take an additional paid leave for a second dose. During the leave, the employer must pay the employee at least their average hourly wage based on the following formula:

amount paid ÷ hours worked

where

• 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
• “hours worked” is the number of hours the employee worked or earned wages within that 30 calendar day period.

Salary, commission, statutory holiday pay and paid vacation days are included in the calculation of wages, but overtime is not included.

Employers can require proof that the employee is entitled to take the leave, for example, by providing a confirmation of their appointment, but employers cannot ask for a doctor’s note or proof that the employee received the vaccine.

This update is part of our continuing efforts to keep you informed about COVID-19. If you are an employer and need assistance, please reach out to any member of our Labour & Employment Team or leaders of our Hub for Business Leaders.