On November 24, 2021, the Government of British Columbia announced that, as of January 1, 2022, eligible employees will be entitled to five paid days of sick leave per year, pursuant to amendments to the Employment Standards Act (ESA) and Employment Standards Regulation, for any personal illness or injury. This entitlement is in addition to the three days of unpaid sick leave currently allowed under the ESA. Thus, as of January 1, 2022, eligible employees in B.C. will be entitled to eight days of job-protected sick leave per year – five paid and three unpaid. The permanent five-day paid sick leave is said to be replacing the temporary three-day COVID-19-related paid sick leave, which is set to expire on December 31, 2021.
Any provincially-regulated employee in BC who has worked for their employer for at least 90 consecutive days is eligible to receive this entitlement. The permanent paid sick leave does not apply to self-employed workers, workers who work for federally-regulated sectors, or employees in professions excluded from the Act, such as engineers, doctors, and accountants. Further, unionized employers should review their collective agreements to confirm whether the existing sick leave terms meet or exceed these new entitlements, as if they do not, then the new entitlements will be deemed to be included in the collective agreement.
If requested by the employer, an employee claiming statutory paid sick leave must, as soon as practicable, provide to their employer reasonably sufficient proof that the employee is entitled to this leave. This supporting documentation can be, for example, a medical note or other document. In doing so, employers must be cognizant of employee privacy related to health matters and ensure that the information received is collected, used, and disclosed with the appropriate sensitivity and in compliance with applicable privacy legislation.
An employee who takes a day of statutory paid sick leave is entitled to an “average day’s pay”, which is an average of the employee’s last 30 days of wages, not including overtime. Employers are wholly responsible for the costs of the paid sick leave and are not eligible to be reimbursed by the government for these payments.
Employer-employee interactions in connection with this sick leave program will also engage the employer’s human rights obligations and, in particular, the duty to accommodate in employment. This will include considering whether any further accommodation is required during and beyond the five paid days of sick leave. Further, for illnesses or injuries that are related to the employee’s performance of their duties, employers should also consider whether the matter falls within the jurisdiction of WorkSafeBC.
In sum, the Province’s introduction of a five-day paid sick leave by way of amendment to the ESA carries a wide range of obligations and considerations for provincially-regulated employers that touch on many of the different aspects of managing employment relationships. If you have any questions about how this program applies to your business, please do not hesitate to contact one of our employment and labour lawyers.
The author would like to thank Kirstie Russell, articling student, for her assistance in preparing this piece.