BC Government Announces ESA Paid Sick Days

On November 24, 2021, the BC government announced that, effective January 1, 2022, British Columbia’s Employment Standards Act (the “ESA”) will include five paid sick leave days. The BC government is the first provincial government in Canada to legislate this number of paid sick leave days.

The announcement comes following the May 2021 amendments to the ESA, which laid the groundwork for establishing a permanent sick leave program in British Columbia. Under those amendments, a temporary COVID-19 related paid leave was introduced into the ESA, which ends December 31, 2021. The COVID-19 related paid leave provides for three paid sick days for certain reasons relating to COVID-19. Effective January 1, 2022, five paid sick leave days will replace the COVID-19 related paid leave and will not restrict the reasons for the time off to reasons relating to COVID-19.  Rather, they may be used for the employee’s own personal illness or injury.

The five paid sick leave days are in addition to the three days of unpaid illness or injury leave already available under the ESA. Employees must have been employed for at least 90 days to be eligible for paid sick leave.

Employers with employees working under collective agreements will need to consider whether their agreements provide for paid leave that would apply in the circumstances of an employee’s illness or injury, and if so, whether those provisions collectively “meet or exceed” the new five days paid sick leave requirement in the ESA.  If they do, the provisions in the collective agreement replace the ESA requirements for employees covered by the agreement; otherwise, the ESA requirements are deemed to be incorporated into the collective agreement.

Employers with unionized employees should be aware that for purposes of the “meets or exceeds” analysis, the comparison is not whether an individual employee’s entitlements under the collective agreement meets or exceeds the requirements of paid sick leave under the ESA, but rather the entitlements of the bargaining unit at a whole (including any casual employees). This can be a complex area of the law, and employers should seek advice on their individual collective agreements as appropriate.

Takeaways for BC Employers

The introduction of the five paid sick days coming into effect creates a new minimum standard under the ESA. Employers governed by the ESA should consider reviewing existing policies and contracts, or collective agreement provisions, to ensure they comply with this new minimum employment standard.

If you have any questions about this new paid sick leave requirement, please contact your Harris lawyer.