On May 20, 2021, the Government of British Columbia passed Bill 13, which amended the Employment Standards Act to provide an employee with paid leave if he or she needs to stay home for reasons related to COVID-19. The bill also introduces a permanent paid illness or injury leave to take effect on January 1, 2022.
COVID-19-Related Paid Leave
The bill provides that an employee is entitled to take up to three paid sick days without a doctor’s note if he or she needs to stay home for certain reasons related to COVID-19. An employee is eligible for paid leave if he or she is:
- “Diagnosed with COVID-19
- Waiting for COVID-19 test results
- Need to self-isolate or self-monitor
- Following a public health order
- Directed to stay home by your employer because of exposure risks”
This leave is in addition to the up to three hours of paid COVID-19 vaccination leave, to which employees are already entitled. Notably, COVID-19-related paid leave does not apply to an employee who cannot work because he or she is experiencing side effects from taking a COVID-19 vaccine, nor does it apply to employees whose absence from work is due to COVID-19-related travel restrictions or family-care obligations.
While taking this leave, an employee is entitled to be paid at least an “average day’s pay.” WorkSafeBC will administer a program that will reimburse employers without an existing sick leave program up to $200 per day for each worker to cover costs. The government has confirmed that “[t]he program is not part of the workers’ compensation system and will not impact WorkSafeBC’s employer premiums or its accident fund.” More details on how an employer can obtain the reimbursement are set to be provided in June 2021. As of now, this leave will remain in effect until December 31, 2021.
Paid Illness or Injury Leave
The British Columbia Employment Standards Act currently allows an employee to take up to three days of unpaid leave per year for personal illness or injury, provided they have worked for their employer for at least 90 consecutive days. Bill 23 supplements this leave with a paid leave for personal illness or injury, which is scheduled to come into effect on January 1, 2022. The number of paid sick leave days to which an employee will be entitled will be determined after consultations.
In order to be eligible for this leave, an employee will still be required to have worked for their employer for 90 consecutive days. Additionally, an employer may request an employee provide reasonably sufficient proof that he or she is entitled to paid personal illness or injury leave. While taking employee is taking paid sick leave, the will be required to pay employees at least an “average day’s pay.”
Takeaways for Employers
Effective immediately, an employee may take up to three days of paid leave if he or she is unable to attend work for reasons related to COVID-19. However, the reasons must be the employee’s inability to work because of a COVID-19-related illness or quarantine —an employee cannot take paid COVID-19 leave as a result of side effects from the COVID-19 vaccine, or COVID-19-related travel restrictions or family-care obligations. An employer that does not have an existing sick leave program will be able to apply through WorkSafeBC to seek reimbursement for costs incurred when an employee takes a COVID-19 paid sick leave.
Currently, an employee is also entitled to take three unpaid days of illness and injury leave. However, the government of British Columbia is proposing to amend the Employment Standards Act to provide employees with paid illness and injury leave. This is scheduled to take effect on January 1, 2022.
In light of these changes, an employer may want to consider taking the following steps:
- Reviewing its sick leave policy to determine whether it qualifies for WorkSafeBC reimbursement
- Determining possible advantages to implementing benefits ahead of a legislative requirement, such as unilaterally offering a sick leave benefits to employees to generate positive response and goodwill
- Reviewing how an employee’s “average day’s pay” is calculated by reference to British Columbia’s Guide to the Employment Standards Act and Regulation.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.
Emily Cohen-Gallant is an associate in the Toronto office of Ogletree Deakins.