On May 11, 2021, the BC government introduced Bill 13 which, if passed, would amend the Employment Standards Act to provide employees with three days of paid sick leave related to COVID-19 through December 31, 2021, and establish as a permanent paid sick leave program that would take effect on January 1, 2022.
A press release announcing the introduction of Bill 13 is available here.
COVID-19 paid leave in 2021
The proposed legislation offers three days of paid leave to full-time and part-time employees who have been diagnosed with COVID-19, are in quarantine or self-isolation in accordance with public health direction, or have been directed not to work by their employer due to a concern about the employee’s exposure to others. The government describes the legislation as “bridg[ing] the gap” between the moment workers first feel sick and when they can access the federal Canada Recovery Sickness Benefit.
When the leave applies, employers will be required to pay workers their average day’s wage for each day of the leave up to a maximum of three days. The legislation sets out a formula for determining an employee’s average daily wage. Similar to the existing formula under the Act for statutory holiday pay, the paid COVID-19 vaccine 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.
Employers with employees working under collective agreements will need to consider whether the paid leave provisions in their agreements apply to the COVID-19 circumstances Bill 13 is intended to address, and if so, whether these provisions “meet or exceed” the requirements of Bill 13. If they do, the collective agreement provisions will be found to replace the requirements of Bill 13; otherwise, the requirements of Bill 13 will be deemed incorporated into the collective agreement.
Employers who do not have an existing paid sick leave program must still pay their workers, but will be able to seek reimbursement from the Province. Employers who fall under this category can seek up to $200 per worker per day to cover their costs. Employers with employees earning more than $200 per day will be responsible for covering the excess daily wages. WorkSafeBC will administer the reimbursement program and is expected to establish the necessary infrastructure to process reimbursement requests within 30 days.
Notably, the legislation only extends to employees personally experiencing COVID-19 related illness or isolation. The paid leave will not be available in circumstances where the employee is providing care to a person who has been diagnosed with COVID-19 or who is in isolation, employees providing care because of school or daycare closures, and employees who cannot return to British Columbia because of travel or border restrictions. In such circumstances, employees may use unpaid leave already provided under the Act. Additionally, this leave is in addition to the up to three hours of paid leave for workers to get a COVID-19 vaccine as we previously reported.
The proposed legislation would permit employers to ask for reasonably sufficient proof of eligibility, although no doctor’s note is required. It will be effective from the date of royal assent and expire on December 31, 2021.
Permanent paid sick leave in 2022
Bill 13 also unveils the Province’s plan to establish a permanent paid sick leave protection that will take effect on January 1, 2022.
Other than a plan to establish this leave, the legislation contains little detail. The number of paid days will be determined after consultations with the business community, labour organizations, Indigenous partners, and other stakeholders. It will apply to employees after 90 consecutive days of employment with their employer and will be in addition to the three days of job-protected, unpaid personal illness and injury leave already set to take effect on January 1, 2022. More details will be released by the end of the year.
Bill 13 had its first reading in the Legislative Assembly on May 11, 2021. We will provide a further update if and when the legislation receives royal assent.
Note to our Readers: Information regarding COVID-19 is rapidly evolving. We are working to bring you up-to-date articles as the legal issues develop and to keep our previous posts updated. Given that the legal issues related to COVID-19 are constantly changing, if you are looking for legal advice or are dealing with an issue in relation to COVID-19, please contact your Harris lawyer or a member of our COVID-19 response team: Sari Wiens, Ilan Burkes, Nicole Toye or Jessica Fairbairn.
To read our most recent articles and other updates on COVID-19, visit our COVID-19 Updates page.