As of January 1, 2022, employees in B.C. whose employment is governed by the B.C. Employment Standards Act became entitled to a minimum of five paid sick days per calendar year. In addition to being aware of this entitlement, there are a few further points that employers should know.
Nearly all employees in B.C. are covered by the Employment Standards Act. Certain professions, occupations and employees are excluded and these are listed in the regulations of the Act. Generally, professionals are excluded as are positions that require licensing or registration under a provincial statute. Additionally, certain specified student employees, sitters and home care workers are exempt. Employees who may be exempt from certain parts of the Act, such as managers, executives, or high technology professionals are not exempt from the paid sick day provisions. Beyond exclusions from the Employment Standards Act, the only other employees in B.C. not covered by the Act are those whose employment falls under federal jurisdiction, such as those who work in banks or the transportation sector, and are covered by the Canada Labour Code.
Previously, employers were obligated to provide three days of paid sick leave if an employee had to stay home as a result of circumstances related to COVID-19. Employers were able to seek reimbursement from the province for this leave of up to $200 a day. This program has now ended and employers are no longer eligible for reimbursement for any costs associated with employee paid sick leave. Additionally, and importantly, paid employee sick leave does not need to relate specifically to COVID-19. It can be taken for any illness or injury and is a permanent change to the Employment Standards Act.
In order to be eligible for the paid sick days, employees must have been employed by their employer for at least 90 days. In addition to this paid sick leave, employees remain entitled to three days of unpaid, job-protected sick days as the previous entitlement under the Employment Standards Act was left in when the amendment for paid sick days was added. In total, employees are entitled to eight days of job-protected sick leave, five days of which are paid.
While government announcements and statements concerning the paid sick leave advised that employers are entitled to request reasonably sufficient proof of illness for the paid sick days, such requirement is not explicitly included in the legislation. As a result, employers are not entitled to demand a medical note for paid sick leave in order for an employee to receive pay, although one could be requested. Over time, as there are complaints and decisions related to this new paid leave, there will likely be further guidance provided around asking for medical notes.
The five sick days do not need to be taken consecutively and all employees are entitled to five days, whether they work part-time or full-time. The amount to be paid is an average day's pay and the formula for calculation is set out in the legislation. Unlike vacation pay, if sick days are not taken at the end of a calendar year, they do not need to be paid out or rolled over to a subsequent year. Any unused sick days will be lost.
The addition of the paid sick days to the Act overrides any contracts or policies that may be in place with employees that provide for less than five days paid sick leave. However, these provisions will not be cumulative for any employers who already provide five or more paid sick days to their employees.
Employers will want to ensure that any existing paid sick day policies and procedures meet the legislative requirements, particularly concerning calculation of pay. Employers may also need to revise policies that may require provision of a medical note to receive pay for such sick days.
While this new paid sick day requirement is often touted as overdue and the largest such legislative entitlement in the country, B.C. employers, and particularly small businesses, are bearing the burden of the cost of this requirement at a time when many are struggling financially. Employers should ensure that they understand the new requirement to avoid any further additional costs, particularly legal costs, or complications related to this new employee entitlement.
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