Illness or Injury Leave

Illness or Injury Leave

British Columbia is once again leading the way as it becomes the first province in Canada to implement a new permanent paid Illness or Injury Leave (also called Sick Leave) program.

Effective January 1, 2022, this new entitlement under the BC Employment Standards Act (ESA) now provides all eligible employees with up to 5 days of paid sick leave per employment year for any personal illness or injury. The employer may reasonably request sufficient proof of illness. The employee must have worked for at least 90 days to be eligible for paid sick leave. The paid sick leave entitlement applies to all employees covered by the ESA, including part-time, temporary or casual employees.

To help employers better understand this new provision, go2HR has compiled the following FAQs based on the inquiries that we have been receiving:

HOW MANY SICK DAYS ARE EMPLOYEES ELIGIBLE FOR ?

Eligible employees can now take up to 5 days of paid sick leave (in addition to 3 days of unpaid job-protected leave which was already in place under the ESA), in each calendar year.

WHAT ARE THE ELIGIBILITY REQUIREMENTS?

An employee must be employed for 90 calendar days, and be covered by the BC Employment Standards Act (ESA); this excludes employees of federally regulated employers and certain exempt professions (e.g. lawyers).

ARE PART-TIME, TEMPORARY (SEASONAL) OR CASUAL EMPLOYEES ELIGIBLE FOR PAID SICK LEAVE?

Yes, provided they meet the eligibility requirements.

IF A SEASONAL EMPLOYEE ONLY WORKS FOR 4 MONTHS, WOULD THEY STILL BE ENTITLED TO 5 DAYS OF SICK PAY?

Yes. Based on the current eligibility requirements, a seasonal employee who works for 4 months is entitled to up to 5 days of paid sick leave in their last month of employment.

Example: A seasonal employee is hired on contract from May 1, 2022, to September 30, 2022.  This employee will become eligible for 5 days of paid sick leave as of August 1, 2022.

DOES THE 90-DAY ELIGIBILITY PERIOD APPLY (OR RESET) FOR EACH NEW SEASONAL CONTRACT?

Yes. As long as a new employment contract is in place (signed by the employee) for each season.

HR TIP: For more information about the importance of employment contacts and templates you can use, contact us at hr@go2hr.ca. 

CAN A SEASONAL EMPLOYEE BE ENTITLED TO MORE THAN 5 DAYS OF PAID SICK LEAVE?

Providing they meet the eligibility requirements and depending on the employee’s start date, it is possible, as the entitlement is changing and will be based on calendar year.

Example 1:  A seasonal employee is hired September 1, 2022 – April 30, 2023.

This employee will be entitled to 5 paid sick days between December 1-31, 2022 and January 1 – April 30, 2023 (new calendar year)

Example 2:  If the employee in example 1 is rehired to work the summer season, June 1, 2022 they would be eligible for an additional 5 days, IF they have a new seasonal employment contract (not continuous employment) and complete 90-days of employment under the new contract.

WHO PAYS FOR THE COST OF THESE NEW SICK DAYS?

BC employers will be responsible for the cost of the paid sick days.

WE ARE NEGOTIATING A NEW EMPLOYEE’S CONTRACT. CAN WE FACTOR IN THESE NEW PAID SICK DAYS AS PART OF THEIR SALARY?

No. Although the sick days are an entitlement under BC ESA, there is no guarantee that the employee would need to take them. This is considered a cost of doing business.

IF AN EMPLOYER ALREADY HAS A SICK LEAVE POLICY IN PLACE, DO THEY HAVE TO INCREASE THE AMOUNT OF PAID SICK DAYS BY 5 ADDITIONAL DAYS PER YEAR?

Not necessarily. If the sick leave policy already meets the minimum requirements of the BC ESA, the employer does not need to change their policy.

Employers who already provide 5 days of sick leave (or more) may want to update their policy to state that their sick leave policy includes the mandated paid sick leave required by BC ESA.

HR Tip: Already offer more than 5 days paid sick leave for your employees? Mention that in your job posting to help attract qualified job candidates.

WHAT ABOUT UNIONIZED EMPLOYEES?

The BC ESA may apply to unionized employees in certain circumstances.  If a collective agreement either does not contain a provision regarding paid sick leave or if the provisions of a collective agreement do not “meet or exceed” the minimum standards in the BC ESA, then the paid sick days will apply to unionized employees.

Example: If a collective agreement currently provides 3 paid sick days, the new entitlement may mean that an employer will need to provide 2 additional sick days to bring the total up to the minimum 5 paid sick days standard.

If a collective agreement provides for paid sick leave that is the same or better than in the BC ESA, then the collective agreement language will prevail.

DOES AN EMPLOYEE NEED TO PROVIDE THEIR EMPLOYER WITH ADVANCE NOTICE?

No. If an employee cannot work due to illness or injury, they should notify their employer as soon as they can.

CAN AN EMPLOYER ASK FOR PROOF OF ILLNESS FROM THEIR EMPLOYEE?

Yes. An employer can ask for reasonable sufficient proof of illness or injury. In practice, this likely will be limited to the employee providing a doctor’s note confirming they were indeed sick however the type of proof requested may vary based on the situation.

CAN AN EMPLOYER PRO-RATE THE NUMBER OF PAID SICK DAYS FOR PART TIME, TEMPORARY, OR CASUAL WORKERS?

No.  Although an employee may only work a few days per week, or even a few days per month, they are still entitled to receive up to 5 paid sick days per calendar year.

While the number of eligible sick days cannot be pro-rated the amount of sick pay is, as it is calculated based on the employee’s average days’ pay for 30 days prior to the sick days.

HOW DO YOU CALCULATE A DAY OF PAID SICK LEAVE?

Employers must pay at least an average days’ pay for each day of paid leave an employee takes.  To calculate an average days’ pay, use the following formula:

Total wages ÷ number of days worked or earned wages = Average day’s pay

Use the total wages earned in the 30 calendar days before the first day of the sick leave, including: salary, commission, statutory holiday pay, and paid vacation. Do not include overtime pay.

IF AN EMPLOYEE WAS SICK FOR 5 CONSECUTIVE DAYS, BUT WAS ONLY SCHEDULED TO WORK ONE OF THOSE DAYS, DOES THE EMPLOYEE RECEIVE 5 DAYS OF PAID SICK LEAVE?

No.  The employee would be eligible for one day of paid sick leave as they missed one day of work.

WHAT IF AN EMPLOYEE IS STILL SICK AFTER 5 DAYS OF PAID SICK LEAVE AND 3 DAYS OF UNPAID SICK LEAVE?

The employee would be placed on a medical leave of absence.   If the employer offers extended health benefit coverage (e.g. short and/or long-term disability) the employee would be entitled to apply.

If the employer does not have a medical benefits plan, eligible employees may choose to apply for EI Sickness Benefits.

CAN AN EMPLOYEE USE A PAID SICK DAY FOR PERSONAL REASONS TO LOOK AFTER A FAMILY MEMBER?

No. The paid sick leave is only for when the employee is sick.

If an employee needs time off to care for an eligible person for a reason related to COVID-19, they may be entitled to the COVID-19 Unpaid Leave.

CAN AN EMPLOYEE TAKE SICK DAYS IN ½ DAY INCREMENTS?

No. Under the BC ESA, any time off work (even one hour) would qualify as one full day for the purposes of sick leave.

The exception would be if the employer and employee agree otherwise or if the company already has a policy in place that provides sick leave in periods of less than one day, as this exceeds the entitlement under the ESA.

CAN AN EMPLOYER FORCE AN EMPLOYEE TO TAKE THE 3 UNPAID SICK DAYS FIRST?

No. The employee can decide whether any sick leave days will be paid or unpaid.

CAN UNUSED SICK DAYS BE CARRIED OVER INTO THE FOLLOWING YEAR?

Unless an employer has a sick policy in place that allows for carryover, any unused paid sick days under the BC ESA, do not carryover from one employment year to the next.

DOES AN EMPLOYER HAVE TO PAY OUT ANY UNUSED PAID SICK DAYS UPON TERMINATION OF EMPLOYMENT?

No.

Should you have any questions, or need additional HR support, please feel free to contact us: HR@go2hr.ca.

go2HR is the health and safety and HR association for BC’s tourism and hospitality industry. Our purpose is to realize strong workforces and safe workplaces that deliver world-class tourism and hospitality experiences in BC.  We empower employers to have strong human resources and a health & safety culture that supports strong business performance.

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go2HR is BC’s tourism & hospitality, human resources and health & safety association, driving strong workforces and safe workplaces that deliver world-class tourism and hospitality experiences in BC. Follow us on LinkedIn or reach out to our team.