2024 Compensation and Employee Turnover Report Form Now Available.
For a copy of the Report form, user guide, other information or to register for a session Click Here
On May 20, 2021, the provincial government further amended the Employment Standards Act (ESA) to provide employees with up to three days of COVID-19-related paid sick/ /isolation/exposure leave until December 31, 2021. This constitutes new minimum standards for all employees in the province, except those covered by a collective agreement where the sick leave provisions “meet or exceed” this new minimum standard.
The purpose of these changes is to support employees to stay home when feeling ill during the pandemic – consistent with public health advice; to bridge the gap in pay for those employees who qualify for the Canada Recovery Sickness Benefit; and to enable future paid sick leave days to be established in 2022.
The two key changes are:
1. Temporary paid COVID-19-related leave (section 52.121 added); and
2. Future paid general sick days (section 49.1 amended).
The new section of the ESA sets out the following terms in combination with the previously enacted section 52.12.
From May 20, 2021 until December 31, 2021, upon request, employees are entitled to up to three days of paid sick leave if:
(a) the employee has been diagnosed with COVID-19 and is acting in accordance with
(i) instructions or an order of a medical health officer, or
(ii) advice of a medical practitioner, nurse practitioner or registered nurse;
(b) the employee is in quarantine or self-isolation in accordance with
(i) an order of the provincial health officer,
(ii) an order made under the Quarantine Act (Canada),
(iii) guidelines of the British Columbia Centre for Disease Control, or
(iv) guidelines of the Public Health Agency of Canada;
(c) the employer, due to the employer's concern about the employee's exposure to others, has directed the employee not to work.
1. Unionized employees
The new paid COVID-19 sick leave (section 52.121) only applies to unionized employees if bargaining unit employees as a group would be better off with being subject to the new minimum sick leave standard of section 52.121 than with the sick leave provisions of their collective agreement. If the collective agreement provisions “meet or exceed” the new provisions of the ESA, when considered as a whole, then section 52.121 has no application. CSSEA’s view is that the sick leave provisions, including the 80% sick pay and eligibility rules “meet or exceed” the new section 52.121, and therefore the new section has no application.
However, in order to support public health measures and employees to stay home when ill during the COVID-19 pandemic, the government encourages employers to extend up to a maximum of three (3) paid sick leave days to employees (i.e. Casual employees, regular employees within their probationary period) who would otherwise not be eligible under the CSSEA collective agreements with the same terms as provided to regular status post-probationary employees (80% paid sick leave for days already scheduled to work, but unable to attend work due to illness). This leave would apply to the reasons set out in section 52.121 (a) and (c) only, but not for the reasons set out in (b) as regular status employees no longer receive the temporary paid leave for self-isolation when asymptomatic. As a result, this paid leave would only be granted for shifts already scheduled to a casual employee or probationary employee that are cancelled due to a COVID-19 diagnosis, or by an employer due to concerns about exposure (although this should be done in coordination with and under the advice of public health). CSSEA has informed the Unions that if employers choose to offer this exception to employee eligibility for sick leave under our collective agreements, it will apply only for the period of May 20 – December 31, 2021 on a strictly “without prejudice” basis.
CSSEA has notified the Union Bargaining Association that sick leave for casual and probationary employees may be granted voluntarily by employers on a gratuitous and strictly without prejudice and precedent basis to CSSEA’s position that the collective agreement meets or exceeds the new provision of the ESA; further, these leaves will only be accessible during a temporary period ending December 31, 2021.
2. Non-unionized employees
The amended ESA at section 52.121 applies in full to non-union employees. They form minimum employment standards.
The three days of paid leave is limited to the three sets of circumstances outlined in the new section, as above. Employees may also receive unpaid leave in these and other circumstances related to COVID-19 as set out in the section 52.12 (see previous CSSEA Infos). Section 52.121 came into effect on May 20, 2021 and applies to leaves from that date forward until December 31, 2021.
The amount of pay granted for each sick day is calculated on the same basis as statutory holiday pay. Employees are paid their average day’s wage for each day of the leave. The paid leave is equal to the average wages earned by the employee over the prior 30 calendar days, less any overtime earned.
Non-union employees would be paid even if they are covered by an employer’s sick leave policy and have exhausted available sick leave credits or are not yet eligible to take a paid sick leave (eg. Probationary employee, not accrued sufficient credits).
The Provincial Government is currently developing a program to reimburse employers up to $200 per day for the new ESA COVID-19 paid leave if there is no existing paid sick leave plan at the workplace. The details of the reimbursement program through WorkSafeBC will be announced in June. While it is not yet clear what the precise eligibility criteria may be, there is the potential for the program to offer CSSEA members the ability to offset the incremental costs of providing these paid leaves beyond the collective agreement requirements. Irrespective, government and provincial funders anticipate that community social service sector agencies should be able to accommodate the temporary additional leave obligations within their current annual funding allocations. If an agency is facing acute operating pressures due to a COVID-19 outbreak or significant costs related to the new ESA COVID-19 paid leave, they should discuss their situation directly with their funding ministries or agencies.
1. Should the new paid sick leave be granted to unionized employees who are eligible for paid sick leave, but do not have sufficient credits in their sick bank at the time they request the leave?
No, the usual sick leave provisions of the collective agreement apply, and the leave should not be granted in those cases. The only exception to the application of the sick leave provisions is as set out above.
2. Should the paid leave be granted to employees who travel for non-essential reasons outside of Canada contrary to PHO orders or guidance, and who must quarantine afterwards?
No, the paid leave should not granted in these circumstances.
3. Should the three days of ESA paid sick leave be granted each and every time an employee meets the criteria in sections 52.12(2)(a), (b), or (c)?
No, only up to a total of three days between May 20 and December 31, 2021 should be granted to any one employee.
4. May employees use the paid leave to care for others who are ill?
No, the paid leave is limited to the employees who meet the eligibility criteria in sections 52.12(2)(a), (b), or (c). Unpaid leaves may be used for other reasons already established under the Employment Standards Act previously in Section 52.12.
5. What kind of documentation can employers request for the new paid sick leave?
There is no change to the documentation employers can request in respect of COVID-19 leaves under the ESA. Employers may request reasonably sufficient proof that the employee is entitled to the leave, but an employer cannot request a medical note (from a medical practitioner, nurse practitioner or registered nurse) to confirm entitlement to the ESA paid leave, as this would add additional pressure on limited provincial health care resources.
Effective January 1, 2022, ill or injured employees may become eligible for a number of paid sick days on a “go forward” basis. The number of days are still to be determined, and will be established via Regulation.
The ongoing sick leave rules under the ESA will also be subject to the “meet or exceed” test for collective agreement application. The government consultation process on the terms of the sick leave provisions will be commencing shortly.
Should you have any questions, please do not hesitate to contact your CSSEA Consultant/Advocate.
Doris Sun
Director of Communications
604.601.3110
604.319.5010
This email address is being protected from spambots. You need JavaScript enabled to view it.