Bill 13, which amends the Employment Standards Act (the “ESA”), has received Royal Assent. As a result, effective May 20, 2021, employers must provide employees with three days of paid sick leave for certain COVID-19 related reasons through December 31, 2021.
The new provision is located at Section 52.121 of the ESA.
Who is entitled to the leave?
Full-time and part-time employees (including casual or “on-call” employees):
- Diagnosed with COVID-19 and acting in accordance with instructions or an order of a medical health officer, or on advice of a medical practitioner, nurse practitioner or registered nurse;
- In quarantine or self-isolation in accordance with an order of the provincial health officer, an order under the Quarantine Act or guidelines of the British Columbia Centre for Disease Control; or
- Directed not to work by their employer due to the employer’s concern about the employee’s exposure to others.
The three days of paid leave is limited to these foregoing circumstances. Employees may also receive unpaid leave in these and other circumstances related to COVID-19. For more information on the availability on unpaid leave, see our previous article.
Notably, the legislation is not retroactive and does not apply to leaves that occurred prior to the date of Royal Assent (May 20, 2021).
Employers may ask for reasonably sufficient proof of eligibility for COVID-19 leave (paid or unpaid), although no doctor’s note can be required.
How much are employees paid?
Employers are 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 ESA for statutory holiday pay, the paid leave takes 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.
What if the employer already offers paid sick leave?
Employers must ensure any non-unionized employees falling into one or more of the above situations from May 20, 2021 through December 31, 2021 receives up to three days of paid leave from work, even if the employee has exhausted their available sick leave or has failed to accrue adequate sick leave during that time period. Whether or not employers will be eligible to claim reimbursement for sick pay provided outside the ordinary terms of their paid sick leave policies remains to be seen, as additional details are released on the reimbursement program as administered by WorkSafeBC.
Employers with employees working under collective agreements will need to consider whether their agreements provide any paid leave that would apply to the COVID-19 circumstances covered by Bill 13, and if so, consider whether these provisions collectively “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 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 Bill 13, 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.
How is the leave paid?
Employers are required to pay eligible workers for the leave when taken.
Although not expressly provided in the text of the legislation, government has conveyed that employers who do not have an existing paid sick leave program will be able to seek reimbursement from the Province through WorkSafeBC. These employers 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 is developing an online application for employers who are registered for WorkSafeBC coverage to apply for the employer reimbursement program. WorkSafeBC estimates the online application will be available beginning in June.
What about paid leaves after December 31, 2021?
As we previously noted, Bill 13 also introduced a plan to establish a permanent paid sick leave protection that will take effect on January 1, 2022.
As a result of receiving Royal Assent, the Employment Standards Act now provides that, after 90 days of employment, an employee is entitled to “paid leave for up to the number of days prescribed” by regulation, beginning on January 1, 2022. These paid leave days will be in addition to the three days of unpaid injury and illness leave which was added to the ESA in 2020.
No additional details have been provided at this time. Consultations are expected to begin to determine the number of days that will be required.
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.