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Fred Wynne, Tevlin Gleadle Curtis

B.C. employers should review, update leave policies as mandatory sick days come into force: lawyers

Monday, December 13, 2021 @ 12:30 PM | By Ian Burns


As British Columbia rings in the new year next month, it will also make history as the first province in Canada to make mandatory paid sick days a permanent feature of its employment landscape.

Paid sick leave will become standard in the province starting Jan. 1, 2022, and will apply to all workers covered by the Employment Standards Act, including part-time employees. Provincial Labour Minister Harry Bains said he “firmly believes” no worker should have to choose between going to work sick or staying home and losing wages.

“But about half of B.C.’s work force does not have paid sick leave,” he said at a press conference unveiling the changes Nov. 24. “And the workers without coverage are usually the most vulnerable workers in our society — those in low paying jobs, often women and racialized people. These are the very people who can least afford to stay home and lose wages when sick.”

Robert Russo, University of British Columbia school of law

Robert Russo, a lawyer and lecturer in employment and labour law at the University of British Columbia, said it was foreseeable that the province would bring in permanent paid sick leave after temporarily doing so as part of its response to the COVID-19 pandemic, but the real question was how many days it would be.

He noted that labour leaders were pushing for 10 days in total but other groups were asking for five or even three.

“When they had their consultation they looked abroad, at the U.S., Australia and Europe,” he said. “Ten days tends to be the standard in Europe and Australia, and in the U.S. California has three days leave. So in that sense they seemed to be trying to reach a compromise between business and unions here and leaning towards a more North American model, and they decided on five days.”


Fred Wynne, Tevlin Gleadle Curtis

Fred Wynne, Tevlin Gleadle Curtis

Fred Wynne, a labour and employment lawyer with Vancouver’s Tevlin Gleadle Curtis, said he thinks the province’s move is a step in the right direction and the pandemic has really illustrated the pros (and cons) of the paid sick leave issue.

“It is one of those surprising things that in B.C., and across Canada in general, that there are very limited paid sick days and that it is not a basic right for people,” he said. “I think a lot of people would be surprised about that.”

Both employers and employees need to be aware of a few things when the clock strikes midnight on Jan. 1, said Russo — including the fact that many workers in the province will be excluded from the new standards, such as independent contractors and professionally regulated jobs like lawyers, doctors and engineers.

“Most unionized workplaces won’t be affected by this — if for some reason a collective agreement doesn’t meet the five-day minimum provision then this regulation will apply, but I don’t think that is going to happen in many cases,” he said. “And another thing to remember is you have to have three months of continuous days of employment before this is going to be triggered.”

Russo noted questions have arisen whether employers can request sick notes — and the answer is yes. Under the Employment Standards Act, an employee must provide, if requested by the employer, “reasonably sufficient proof” that the employee is entitled to leave as soon as possible.

“Employers should also be aware of the amounts that have to be paid,” he said. “There is a formula under the Act for calculating that.”

James Kondopulos, Roper Greyell

James Kondopulos, a labour and employment lawyer with Roper Greyell in Vancouver, said employers who have sick leave policies already in place will have to review and update them to ensure compliance.

“This is also particularly interesting for employers who already have paid time off policies in place — they will want to look at those policies because you don’t want to be in a situation where the employee claims the paid time off under the employer policy plus the paid sick days under the ESA,” he said. “One potential tweak would be revising the paid time off policy to make clear it is exclusively for sick days. Otherwise, you might be doubling up on the employees’ entitlement.”

But the new system is different from the temporary leaves put in place to combat the COVID-19 pandemic in that businesses will be absorbing the costs of them, whereas the COVID-19 leaves included financial assistance. The Greater Vancouver Board of Trade said that five days of employer-paid sick leave is estimated to cost between $506 million and $1.1 billion on an annual basis.

Kondopulos said the case for paid sick leave is compelling and keeping workplaces safe is important but “there will be an incredible cost burden for employers in this province.”

“It really does add to the significant payroll cost pressures which B.C. businesses have been increasingly feeling in the last few years,” he said, noting the province’s employer health tax and changes to CPP and EI. “I think we need to be fair to both sides, and I appreciate why there was a push for this, but we also need to be alive to the impact on business as well.”

But Wynne said if a business has to shut down due to someone coming in when they shouldn’t be and getting their fellow workers sick the cost would be “higher than giving a person a day off work.”

“That is the balance,” he said. “We want to encourage people who get sick to stay home — which is kind of against our normal North American work culture — but it is for the greater good so you will have greater productivity in long run.”

And British Columbia is not the only jurisdiction in Canada implementing a sick leave policy, with Ottawa recently mandating 10 days’ paid sick leave for federally regulated employers. Russo said these two moves will likely spur change in other provinces and territories.

“During the pandemic there has been kind of a growing acceptance that workers are much more attuned to health risks on the job and the benefits of paid sick leave,” he said. “And businesses are definitely facing labour shortages, so this could be something that entices more employees to come back.”

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.