On May 11, 2021, the B.C. government introduced Bill 13 – 2021: Employment Standards Amendment Act (No 2), 2021(the “Bill”), which once passed will provide employees with up to three days of paid sick leave related to COVID-19 through December 31, 2021, and establish a permanent sick leave program that would take effect on January 1, 2022.
The full Bill is available here and the BC Government’s original press release can be accessed here. The first reading of the Bill took place on May 11, second reading May 12, and we expect if all goes well the Bill will likely receive Royal Assent by end of this week (May 21, 2021). The progress of the Bill can be checked here.
Covid-19 Related Paid Sick Leave
Who Does it Cover?
Following previous recent amendments to the Employment Standards Act, employees are already entitled to unpaidCovid-19-related leave for certain circumstances under section 52.12 of the Act.
Under the Bill, some of these circumstances will entitle employees to paid leave. Employers will be required to provide full wages for up to three days as paid leave in each employment year to full time or part time employees, in specific circumstances where:
a) the employee has been diagnosed with COVID-19 and is acting in accordance with (i) instructions or an order of a medical health officer, or (ii) advice of a medical practitioner, nurse practitioner or registered nurse; b) the employee is in quarantine or self-isolation in accordance with (i) an order of the provincial health officer, (ii) an order made under the Quarantine Act(Canada), (iii) guidelines of the British Columbia Centre for Disease Control, or (iv) guidelines of the Public Health Agency of Canada; c) the employer, due to the employer’s concern about the employee’s exposure to others, has directed the employee not to work.
Employees who are entitled to paid COVID-19-related leave would also continue to be entitled to unpaid leave following the 3-day period of paid leave, so long as the circumstances for which they have become entitled to the leave apply (e.g. the employee continues to be subjected to a mandatory period of quarantine), as well as an additional up to three hours leave for Covid vaccination (per dose).
Calculations & Employer Reimbursement
Where the paid leave applies, employers will be required to pay the employees their average day’s wage for each day of the leave, up to a maximum of three days in accordance with the formula set out in the amendments:
Similar to the existing formula under the Act for statutory holiday pay, the paid COVID-19 leave will take into account the wages earned by the employee over the prior 30 calendar days, less any overtime earned, in calculating the employee’s average day’s pay.
According to the press release details, employers without an existing sick leave program can seek reimbursement from the B.C. government in the amount of up to $200 per worker per day to cover their costs. Employers that have a highly paid workforce, but do not already have paid sick leave, will be required to cover any remaining wages owed above $200 for each COVID-19 sick day taken. WorkSafeBC will be administering the employer reimbursement program starting in June.
Who Is Not Covered
The paid leave does not apply to employees: a) providing care to an eligible person, including because of the closure of a school or daycare or similar facility; b) being outside the province who cannot return to British Columbia because of travel or border restrictions; or c) any other prescribed reason.
While not all employees may qualify for the new paid sick leave, the existing Covid-19-related unpaid leave continues to be available, as well as an additional up to three hours of paid leave from work to receive each dose of the COVID-19 vaccine.
Unionized employers need to consider whether existing collective agreement provisions respecting paid sick days meet or exceed these requirements. If they do, the agreement provisions will apply instead. If they do not, the requirements of the Bill will be deemed incorporated into the collective agreement.
Proof of Eligibility
Employers can request reasonably sufficient proof that a required circumstance applies to the employee, however a note from a medical practitioner should not be requested, and employees are not required to provide one.
Permanent Paid Sick Leave Program – 2022
In addition to the COVID-19 related leave, the Bill proposes a permanent paid sick leave program for employees unable to work due to an illness or injury. The number of paid days will be determined after consultations with the business community, labour organizations, Indigenous partners, and other stakeholders.
This new leave will apply to employees after 90 consecutive days of employment with their employer and would come into effect in January 2022. More details will be released later this year.
We will provide a further update as the Bill comes into force.
Note to Readers: This is not legal advice. If you are looking for legal advice in relation to any workplace matters, please contact Junki Hong or Chris Drinovz.
Author: Junki Hong and Chris Drinovz, Partner, KSW Lawyers Employment & Labour Group (firstname.lastname@example.org and email@example.com) Junki Hong joined the KSW Employment and Labour Group in 2020 with a background in employment law, intellectual property and commercial disputes. Junki is fluent in Korean, and regularly contributes articles to the Vanchosun Korean Newspaper. He also gives back to the community through membership in the Access Pro Bono Lawyer Referral Service, Federation of Asian Canadian Lawyers (British Columbia), and the Association of Korean-Canadian Scientists and Engineers. Chris Drinovz is an experienced employment and labour lawyer in Abbotsford, Langley, Surrey & South Surrey, a Partner at KSW and Head of the Employment & Labour Group at KSW Lawyers (Kane Shannon Weiler LLP). Chris has been assisting local businesses with workplace issues since 2010. His expertise covers all facets of the workplace including wrongful dismissal, employment contracts, workplace policies, and WorkSafeBC matters, including occupational health & safety. Chris is on the Executive of the Employment Law Section of the Canadian Bar Association BC, and a Director for Surrey Cares and Greater Langley Chamber of Commerce.