As of January 1, 2022, employers in British Columbia are required to provide a minimum of five paid sick days each year to all employees covered by the BC Employment Standards Act (the “Act”).
This announcement has been anticipated by many employers in wake of the COVID-19 pandemic, which has placed a spotlight on the availability of paid sick leave (or lack thereof). In May of 2021, the BC government legislated a temporary three-day COVID-19 paid sick leave, which expired at the end of 2021.
Under the new legislation, all employees falling under the Act, whether full or part time, will become eligible for five paid sick days per year after 90 days of consecutive employment. Notably, in contrast to the temporary COVID-19 paid sick leave, there will be no government financial assistance to help employers cover the cost of the new paid sick leave under the Act. This new paid sick leave is in addition to three unpaid sick days under the Act. The new legislation in the Act is as follows:
49.1 (1) After 90 consecutive days of employment with an employer, an employee, for personal illness or injury, is entitled in each employment year, to
(a) paid leave up to the number of days prescribed, and
(b) unpaid leave for up to 3 days.
Employees who qualify for paid sick leave must be paid an “average day’s pay” for each day of leave. A formula for calculating this amount is provided in the Act, but can be summarized as the average daily amount of what the employee earned in the 30 preceding calendar days (inclusive of vacation pay, but excluding overtime pay).
Employers are understandably concerned about the potential for abuse of paid sick days. In this regard, employers are entitled to request “reasonably sufficient proof” of illness or injury. This may include requesting a doctor’s note. However, the proof requested must be reasonable in the circumstances. In other words, not every situation will call for a doctor’s note.
As always, the provisions of the Act are minimum requirements. Many employers already have sick pay policies in place that meet or exceed the statutory requirements. Employers with existing sick pay policies will be required to provide a minimum of five paid sick days, but may provide more at their discretion. Employers should review their existing policies to ensure they are compliant with the new legislation.
Employers in unionized work environments will need to consider whether, in reviewing all provisions in the collective agreement that are rationally and meaningfully connected to the subject matter of “paid personal illness or injury leave”, they have “met or exceeded” the sick leave provisions in the Act. This may be difficult to determine, depending on the particular provisions of the collective agreement. Where the provisions of the Act have not been met or exceeded, the paid sick day legislation will apply.
If you are unsure whether your current policies and practices are in compliance with the new legislation, we recommend speaking to a legal advisor.The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer. If you have any questions or concerns, contact a legal professional.