Author: Chris Drinovz, Partner, KSW Lawyers Employment & Labour Group

As previously covered in our earlier article “Important Changes to BC Employment Standards Act”, Bill 8 received Royal Assent on May 30, 2019 and it proposed gradual implementation of changes to the BC Employment Standards Act. Then on May 11, 2021, the B.C. government introduced Bill 13 – 2021: Employment Standards Amendment Act (No 2), 2021 (the “Bill”), which provided employees with up to three days of paid sick leave related to COVID-19 between May 20, 2021 and December 31, 2021, and also established a permanent sick leave program that would take effect on January 1, 2022. The full Bill is available here and the Bill received Royal Assent on May 20, 2021.

After consulting with businesses and workers further, on November 24, 2021 the Labour Minister Harry Bains announced that effective January 1, 2022, employers are required to provide their eligible employees with up to 5 days of paid sick leave per year if they need to stay home because they are sick or injured. Both full-time and part-time employees are eligible for this benefit. This new paid sick leave is currently the most offered in Canada.

The business community and the local BC Chambers have voiced a lot of concerns with the timing and impact of this new leave on employers given many other rising costs, including the chain supply issues, labour shortage, BC floods impact, employer health tax, increases in minimum wage, and the ending of some Covid-related subsidies or programs for businesses. Statement of Fiona Famulak, President and CEO of the BC Chamber of Commerce can be found here.

Paid Sick Leave Eligibility

The paid sick leave entitlement applies to all employees covered by the Employment Standards Act (ESA), including part-time, temporary or casual employees, as well as most seasonal or temporary foreign workers.

The ESA does not cover certain types of employees, including:

– Federally-regulated sectors

– Self-employed workers or independent contractors

– Employees in professions and occupations excluded from the ESA

To qualify for this new paid leave, employees must be employed for 90 consecutive days.

Employers are permitted to ask an employee for sufficient proof of illness or injury, which an employee must provide as soon as practicable.

An employee does not need to give advance notice or seek prior approval to miss a day of work due to personal illness or injury.

Sick Leave Pay

You need to pay your employees their regular wages for these days. To calculate for employees working various hours use the same formula as calculating statutory holiday pay:

Total wages ÷ number of days worked = sick day pay (an average day’s pay)

Base your calculation on days worked during the 30 calendar days before the sick day – include vacation days.

Include all wages – this includes salary, commission, statutory holiday pay and paid vacation. Don’t include overtime.

The average day’s pay is then multiplied by the number of sick days the employee requests.

Other Points & FAQs

A few interesting points and questions that came up from our discussions with employers and Chambers network:

• If not fully used, days don’t carry over into the next year, and nothing needs to be paid out by the employer. If an employee uses 3 days for 2022, in 2023 they will have 5 days. There is a question around whether employers have to keep track of the days per year of service or calendar year.
• Part time workers also get 5 days, however the calculation of pay they get for that sick day is based on their average pay based on last 30 days as outlined in the above formula.
• Employees are also entitled to 3 days of unpaid sick leave in addition to the 5 paid sick leave.
• There is currently no limit for employees with multiple employers – they can receive up to 5 paid sick days from each employer.
• There is no reimbursement or subsidy for employers from the government at this time, employers are entirely responsible for the cost.
• If your current sick time policies provide for 3 days, or anything less than 5, they will need to be updated to provide 5 days starting January 1, 2022.
• There is no requirement to allow ½ sick days – only 5 full sick days.
• Some employers are offering employees a bonus if they don’t take all 5 sick days off in a year.
• If an employer is unionized and its collective agreement does not “meet or exceed” the new paid sick leave, this requirement will be deemed to be incorporated into the collective agreement and the total number of days will be brought up to the new standard of 5 days.

Our employment and labour lawyers are heavily involved in various local BC Chambers and Policy Committees, attend roundtable discussions and present webinars regularly on the Employment Standards Act and related legislation. We communicate all these updates to our clients and readers on our Employer Resources Portal and through monthly Newsletters. If you have any questions or need assistance revising your employment contracts or policies, please reach out to Chris Drinovz at cdd@old.kswlawyers.ca.

About KSW Lawyers and our Employment & Labour Group

KSW Lawyers (Kane Shannon Weiler LLP) was founded in 1973. Today, we maintain office locations in Surrey, South Surrey/White Rock, Abbotsford, Langley and Vancouver, and our lawyers serve clients throughout the Fraser Valley and Lower Mainland. Our firm is well known among the various industries in which we operate for our professionalism, integrity and diligent representation. We offer services in a large variety of areas including: Business & Corporate, Employment & Labour, Tax, Real Estate, Litigation & Disputes, Wills & Estates and more.

At KSW Lawyers, the main goal of our Employment & Labour Group is to empower our clients with the knowledge to make the right decisions in their workplace. We do this by educating employers on their rights and obligations and tirelessly working with them to achieve the outcome that meets their objectives.

Why choose to work with us? We see all the angles. We are versatile. We are experienced. We are local.

Our Employment & Labour Group lawyers include: Chris Drinovz, Mike Weiler, Jesse Dunning, Junki Hong and Alejandra (Ale) Henao.