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On November 24, 2021, the British Columbia government announced that all employees covered by the Employment Standards Act will be entitled to a minimum of 5 days of paid sick leave per year for “personal illness or injury”, beginning January 1, 2022.
Which employees are eligible?
The provision of paid sick leave applies to all employees covered by the Employment Standards Act, including full-time, part-time, casual and temporary employees. It also applies to managers. However, it does not apply to independent or dependent contractors, unless they are found to be an “employee” for the purposes of the Employment Standards Act.
How many days of sick leave are employees entitled to?
Employees are entitled to a minimum of 5 days of paid sick leave per year, in addition to a minimum of 3 days of unpaid sick leave per year.
When do employees become entitled to sick leave?
Employees become entitled to paid and unpaid sick leave after 90 consecutive days of employment.
Is the paid sick leave entitlement per calendar year or employment year?
Current employees are entitled to a minimum of 5 days of paid sick leave beginning January 1, 2022, so their entitlement is per calendar year. New employees hired after January 1, 2022 are entitled to a minimum of 5 days of paid sick leave per employment year. Employment year is defined as the specific employee’s employment year based on their start date.
How much are employees paid when taking a day of paid sick leave?
An employee who takes a day of paid sick leave is entitled to an “average day’s pay”. An average day’s pay is calculated by adding up the total “wages” earned by the employee over the 30 calendar days preceding the leave (which includes the employee’s salary, commission, statutory holiday pay and paid vacation, but not overtime) and then dividing that amount by the number of days worked within that 30 calendar day period.
The formula is expressed as:
Total wages ÷ number of days worked = average day’s pay
Do the days of paid or unpaid sick leave have to be taken consecutively?
No. Employees may take individual days of paid or unpaid sick leave at any time over the course of the year.
If an employee receives paid sick leave on a statutory holiday, do they also receive statutory holiday pay?
If the employee was not scheduled to work on the statutory holiday, they are not entitled to paid sick time. If the employee was scheduled to work on the statutory holiday, the employee is entitled to both the sick pay plus the average day’s pay (as calculated for statutory holiday pay under the Act). For example, if the statutory holiday to which an employee is entitled to falls during their vacation, the vacation time is not reduced as result as the statutory holiday.
Can the employee choose whether to take paid or unpaid sick leave?
Yes, the employee is entitled to choose whether they wish to use a paid or unpaid day when they are entitled to sick leave. There is no requirement to use paid sick leave before unpaid sick leave. All requests for paid or unpaid sick leave should be received in writing.
Can employees take paid or unpaid sick leave in periods of less than one day?
No. Any time taken off on any day qualifies as one day for the purposes of paid and unpaid sick leave. Employees cannot, for example, substitute two half days of paid sick leave for one full day of paid sick leave.
Can employers ask for a doctor’s note?
Yes. The employer may ask the employee to provide “reasonably sufficient proof”, such as a doctor’s note, to establish their entitlement to paid or unpaid sick leave. However, the employer is not required to do so. If the employer asks for a doctor’s note, the employee should provide one as soon as reasonably practicable.
Do employees have to give advance notice that they intend to take paid or unpaid sick leave?
No, employees do not have to give advance notice that they intend to take paid or unpaid sick leave. However, an employee should notify the employer that they require sick leave as soon as reasonably practicable.
Can employers refuse to grant a request for paid or unpaid sick leave?
The Employment Standards Act states that the employer must grant a request for paid or unpaid sick leave if the employee is entitled to it. However, if the employer subsequently learns that the employee was not entitled to sick leave, it may reasonably deny the request.
If paid and unpaid sick leave a “protected leave”?
Yes. Paid and unpaid sick leave is a “protected leave” under the Employment Standards Act, which means that an employer cannot terminate employment or change a condition of employment without the employee’s written consent because of an employee’s sick leave.
If an employee does not use all of their paid or unpaid sick leave for the year, do the unused days carry over to the following year?
No. Sick leave does not carry over from year to year if it is not used.
Does paid sick leave constitute “wages” for the purposes of the Employment Standards Act?
Yes, and so should be taken into account in calculations for vacation pay and statutory holiday pay.
Questions? Please contact:
Lorene A. Novakowski, Partner
+ 1 604-631-3216
LNovakowski@fasken.com