Paid Sick Leave in B.C. Gets Even Weirder

In a recent article, Robert Smithson addressed the inherent weirdness of the B.C. government’s new paid sick leave rules. Those rules have recently been updated, and the weirdness just got… weirder. 

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 on the 2021 addition to our Employment Standards Act.

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

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The New Rules

The new paid sick leave rules state that, after 90 days of employment, all employees can take up to 5 paid days (and 3 unpaid days) of job-protected leave in their employment year, based on their starting date.  That’s not so bad; it’s the way the details have been constructed which is causing businesses all sorts of grief.

• Employees who hold more than one job get 5 paid sick days and 3 unpaid days per job.
• Employees scheduled to work on a statutory holiday and who call in sick get paid an average day’s pay for both the statutory holiday and the paid sick day.
• Employees calling in sick for a shift get paid an average day’s pay regardless of how long/short the scheduled shift was, meaning that (for instance) an employee missing a scheduled 2-hour shift could be entitled to 8 hours of sick pay.
• Even casual employees are entitled to paid sick leave, as long as they have been scheduled for a shift, and they benefit from the “average day’s pay” rule cited above.
• Employees who leave at any time during a shift are entitled to be paid an average day’s pay on top of the wages they already earned for the balance of the shift, setting up the possibility (for instance) of an employer having to pay an employee 15 hours’ pay for having worked 7 hours and gone home sick with 1 hour to go in the shift.

It’s A Mad, Mad World

I don’t think I’m overstating things when I say that these rules amount to sheer madness on the part of the B.C. government. No employer that I know of (and I’ve dealt with hundreds over the last 25 years) has paid its employees sick pay in these ways, even the ones which have generous sick leave policies. These paid sick leave rules could prove ruinous for small businesses and for a wide range of operators in the retail, hospitality, and fast-food industries.

Now, B.C.’s government has tinkered with the new rules in two particular ways, one which will be well received and one which definitely will not.

First, the good news.  The annual paid sick day entitlement has been amended to be based on a calendar year, not based on each employee’s hire date.  That is a welcome change and should streamline the tracking process for most employers.

Next, the bad news.  This amendment specifically addresses, and eliminates, trade unions’ discretion to negotiate with employers to arrive at different rules for paid sick days.  Until now, unions and employers had a limited ability (see s.3(2) of the ESA) to negotiate terms of employment which, while not exactly duplicating the ESA requirements, met or exceeded its requirements.

This meant that unions and employers could, in effect, negotiate their own paid sick day rules as long as those rules, taken together, met or exceeded the requirements of the ESA.  An example might be a set of collective agreement provisions which address the topic of paid leaves of absence as a whole and provide the employee with (for instance) 10 paid days of leave to be used in the course of the year at the employee’s discretion.  They might be used for all manner of leaves such as sick days, personal leaves, leaves for educational or professional development purposes, etc.  Until the recent amendment, that set of provisions might have been totally fine.

Now, however, such a provision would in all likelihood be found by the Employment Standards Branch to violate the new paid sick day rules.  That’s because it does not provide 5 paid days off specifically for sick leave and because it might also not meet the payment requirements summarized above.

Another example is the type of provision often found in municipal collective agreements, by which certain categories of employees are paid a flat percentage on top of their wages in lieu of a range of traditional benefits.  This has, for a long while, been a straightforward mechanism utilized by unions and employers to ensure that these employees, while not participating directly in benefits coverage and other “fringe benefits” are nonetheless being compensated appropriately.

Those sorts of provisions will most certainly not satisfy the new ESA requirements.  This means that unionized employers will have to renegotiate such provisions to effectively separate out the paid sick leave component.  That may be no easy task; I expect many B.C. unions see the new paid sick days as a freebee, a windfall for their members.  I doubt many employers see it that way.

What’s Going On?

All of this is (to me) a curious development.  Why would B.C.’s N.D.P. government – a traditionally union-friendly political force – seek to limit unions’ discretion to negotiate terms of employment on behalf of their members?  Does this government not trust in unions’ ability to negotiate appropriate terms of employment for union members? 

I also wonder how the trade unions feel about this development.  On the one hand, the new paid sick day rules are a boon for their members.  On the other hand, this move by our N.D.P. government further limits the active role which unions can play on behalf of their members.  I’ve long argued that much of the role of trade unions has been usurped by modern employment legislation (employment standards, workplace safety, human rights, labour relations) and this seems like just another step in that direction.

Just what, union members may be asking, am I paying union dues for, anyway?

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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.