Paid Sick Leave Is Here To Stay

Effective January 1, 2022, employers will be required to provide their eligible employees with up to 5 days of paid sick leave per year.

Robert Smithson, whose employment law articles are some of the best and no-nonsense we’ve seen on the subject of COVID-19, provides his perspective. 

The original version of this article can be found on Smithson Employment Law Corporation. 

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The B.C. government has recently taken the rather large step of adding an entitlement to paid sick leave to B.C.’s Employment Standards Act.  The leave, up to 5 days annually, becomes effective on January 1, 2022, and applies only to provincially-regulated employees.

How Did We Get Here?

I call this a large step because the B.C. government has never been in the business of compelling employers to pay employees for not working.  Until the arrival of a little thing called the global COVID-19 pandemic, that is.

The paid COVID-19 leaves (up to 3 days of paid sick leave, and paid time away to become vaccinated) really were our government’s maiden voyage into the choppy waters of compelling employers to pay people to not work.  Perhaps it was because of the urgency of the pandemic, but I really didn’t hear too many employers reacting overly negatively to that initial move.

Now, seemingly using the paid COVID-19 leaves as a springboard (readers of Naomi Klein’s book, “The Shock Doctrine”, might be nodding knowingly…), the government will require employers to pay employees for up to 5 days of sick leave in the year.  The ESA being what it is, this is an entitlement which cannot be contracted out of… in other words, you’re stuck with it.  (Provincially-regulated employers can perhaps be thankful they are not in the federal realm, where a bill is in the works to provide 10 days of paid sick leave, annually.)

Now, most employers seem to provide their employees with some amount of paid sick days each year, so perhaps this new statutory sick leave is not such a big deal.  On the other hand, it does seem to represent another step into the realm of government agencies regulating and managing private sector employers' businesses on a day-to-day basis.  More on this, below

What’s This New Paid Sick Leave All About?

Here’s what I’ve found, so far, about the ESA’s new paid sick leave provisions.

• Effective January 1, 2022, employees can take up to 5 days of paid leave per year for any personal illness or injury if they need to stay home from work.

• This paid leave is in addition to the 3 days of unpaid sick leave currently provided.

• The paid sick leave entitlement applies to all employees (note that some occupations are excluded from the ESA), including part-time, temporary and casual employees.

• Employees must have worked with their employer for at least 90 days to be eligible.

• Employees must be paid an average day’s pay for each sick day.  An average day’s pay is calculated based on the employee’s prior 30 calendar days of work.

• Employers can ask for reasonably sufficient proof that an employee requires this leave, and employees will be required to provide that proof within a reasonable time frame.

• It appears that employees don't need to give the employer advance notice.

• Paid sick days do not carry over from year to year.  It is a “use it or lose it” entitlement.

• The usual ESA rules relating to “protected leaves” apply to paid sick leave. 

• Any amount of time taken off, on any day (even one hour), counts as a full day towards the employee’s annual sick leave entitlement.

Among other things, it’s entirely unclear to me what happens if an employee becomes sick during a shift and needs to go home early.  Does the employer have to pay that employee an average day’s pay on top of the wages the employee already earned that day?  The government’s website says, “The Act does not stipulate an arrangement in which the employee can take partial sick days and be paid in accordance with the average day’s pay formula…”, but I honestly cannot decipher that mumbo jumbo.  Perhaps employers will get some clarity on that in the new year.

Government Intervening in Day-To-Day Business Activities

I mentioned, above, that it seems to me this represents another government step into the realm of regulating and managing private sector employers’ businesses on a day-to-day basis.  What I mean is that, inevitably, there will be disputes between employers and employees about whether the employee was actually sick on the day in question. 

Employees will file complaints with the Employment Standards Branch claiming that they were entitled to paid sick leave but weren’t provided it.  The Branch, and ultimately the Employment Standards Tribunal, will have to adjudicate the complaints, deciding whether the employee was actually sick, whether he/she provided sufficient proof of illness, etc.

In the same fashion that the bullying and harassment provisions in B.C.’s Workers Compensation Act have given WorkSafeBC the ultimate say about what happens in workplaces, the Branch is now going to have that same sort of influence and authority.  This is a materially different thing than just setting minimum wage rates and establishing statutory holidays, etc.  If the recent, exponential increase in bullying and harassment complaints is any indication, employers should become accustomed to the Branch assuming responsibility for deciding who was sick (and should be paid) and who wasn’t.

I’m not in any way “anti-government”, but I have seen how intrusive and cumbersome and expensive dealing with WorkSafeBC has become for employers.  My hope is that the same thing doesn’t start happening with the Employment Standards Branch, but I’m skeptical.  The Branch had better start hiring new officers because its workload is about to skyrocket.

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This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.