Effective as of January 1, 2022, BC employers are required to provide eligible employees with up to five (5) days of paid sick leave per year. BC is the first province to provide paid sick days to employees. The need for paid sick days has been highlighted by the COVID-19 pandemic, where many employees who experienced COVID-19 symptoms had to choose to stay home from work without pay.
Prior to the new entitlement to five days of paid sick leave, section 49.1(1) of BC’s Employment Standards Act, only required employers to provide employees with three days of unpaid leave related to illness or injury.
Notably, from May 20, 2021 until December 31, 2021, eligible BC employees were entitled to three paid sick days, but only if their sickness was related to COVID-19. However, as of December 31, 2021, this COVID-19-related sick leave has been replaced by the new entitlement of five days of paid sick leave, which does not need to be taken in relation to COVID-19.
As the new entitlement to five days of paid sick leave has come into effect, we seek to answer some commonly asked questions.
Q: Which employees are eligible for the five days of paid sick leave?
A: All employees who are covered by the BC Employment Standards Act (including part-time, temporary, or casual employees) who have been employed for 90 days or more.
Q: Which types of employees are not eligible to receive five days of paid sick leave?
A: Any employees that are federally regulated, self-employed, independent contractors, or employees who are in professions or occupations that are excluded from the BC Employment Standards Act.
Q: Can an employer request that an eligible employee provide evidence that they are sick during their five days of paid sick leave?
A: Yes. An employer can request that an eligible employee provide, “reasonably sufficient proof of illness.” This could be in the form of a doctor’s note confirming that the employee is sick.
Q: What happens if the employee is still sick after they take five paid days off?
A: The employee is entitled to a further three sick days that are unpaid. After these eight days have passed (i.e., five paid days off and three unpaid days off) the employee may be put on a medical leave of absence. If the employee’s illness amounts to a disability under the BC Human Rights Code, the employee will have protections under the Code. As well, if the employer has benefits, the employee may be able to apply for short term disability.
Q: What amount of wages do employers need to provide eligible employees who take their five paid sick days?
A: Employers must pay eligible employees their regular wages when they take their five paid sick days. Regular wages are calculated by dividing the “amount paid” by the “days worked” to arrive at the particular employee’s “average day’s pay.”
amount paid ÷ days worked
The amount paid equals the wages the employee earned in the 30 calendar day period preceding the leave, and the days worked is the number of days the employee worked or earned wages within that 30 calendar day period.
Q: Do the five paid sick days need to be taken consecutively? Do employers have to pay employees for the paid sick days if they are not used, or can the employee roll unused sick days over into the next year?
A: The five paid sick days can be taken at any time during the calendar year and do not have to be used consecutively. Employers do not have to pay employees in lieu of the five paid sick days if they are not used, nor is an eligible employee entitled to roll over the unused sick days into the next calendar year.
As a result of these changes to the BC Employment Standards Act it is advisable that employers ensure that their existing employment contracts and workplace policies are amended to reflect this entitlement, and that employment contracts for new employees hired after January 1, 2022 are drafted in such a way that they do not contravene the Act.
Our employment law team at Doak Shirreff Lawyers is happy to assist with employment contract and workplace policy review, revision, and drafting.
The foregoing is intended for general informational purposes only and should not be construed or relied upon as legal advice. If you require legal advice, please contact the author, who would be pleased to discuss the issues above with you.
Nikita Gush is an employment lawyer at Doak Shirreff Lawyers LLP. She can be reached at [email protected].