Effective January 1, 2022, all employees, whether part-time, full-time, indefinite or fixed-term, working in British Columbia, who are protected by the provisions of the Employment Standards Act, and who have been employed with the same employer for 90 days or more, are entitled to take up to five (5) paid days off from work if they experience personal illness or injury. The illness or injury does not need to be work-related, but it must be in relation to the employee and not a family member or dependent. This new paid leave entitlement is in addition to the three (3) unpaid but job-protected leave days already available to employees who experience work or non-work-related personal illness or injury. As well, the three (3) paid leave days related COVID-19 illness will expire as of December 31, 2021 (unless extended).
How the new paid sick leave works
Employers are entitled to request proof from the employee supporting the employee's request for this time off.
Where an employee is entitled to the paid leave for personal illness or injury, employers must pay at least an average day's pay for each day of paid leave taken. An average day's pay is calculated as follows:
- Add up the total wages earned by the employee, including hourly wages, salary, commission, statutory holiday pay, and vacation pay, but not overtime pay, in the 30 calendar days immediately preceding the first day of the sick leave;
- Divide the total above by the number of days worked by the employee during the same 30-day period, including vacation days taken.
Aidan earns $16/hour and works 8 hours per day for 15 days between January 2, 2022 and February 2, 2022. Aidan also takes four (4) vacation days during this period and is paid $500 vacation pay. Aidan takes February 3, 2022 off from work due to illness. Using the formula above:
$16/hour x 8 hours per day x 15 days = $1,920 (regular wages) + $500 vacation pay + $128 statutory holiday pay = $2,548 total earnings over the 30 days immediately preceding February 2, 2022 divided by 19 days (15 working days and 4 vacation days), Aidan's average day's pay is $134.11 to which she is entitled for her paid time off on February 3, 2022.
Remember, employees in BC are also entitled to up to three (3) hours of paid time off from work in order to receive the COVID-19 vaccine. This applies to any number of doses that an employee may be required to receive.
Gowling WLG focus
For employers who presently have paid sick leave plans and/or policies that already provide for paid sick leave on a gratuitous basis (meaning not required by statute), it is recommended that those plans and/or policies be updated to expressly state that any paid or unpaid leave taken pursuant to the ESA will correspondingly reduce all related statutory leaves prescribed the ESA. Absent this language, employees may have good argument that they are entitled to receive the paid leave already offered pursuant to the employer's existing plan and/or policy plus the paid or unpaid leave pursuant to the ESA.