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April 13, 2022 - Additional Details on New Sick Pay Minimum Requirements

Further to this CSSEA Info issued on March 31, Bill 19 has received Royal Assent and is now law. Bill 19 amended the minimum sick leave provisions under the Employment Standards Act and replaces some previous advice dispensed by CSSEA, including parts of this January CSSEA Info.

As previously mentioned in the March CSSEA Info, Bill 19 removed the sick leave sections from Section 3 of the Act, which had allowed for collective agreements to avoid the application of the minimum sick leave standards, as long as the collective agreement provisions on sick leave, when taken together, “meet or exceed” the Act minimums. In CSSEA’s view, the collective agreements met this test and the minimums did not apply to unionized employees covered by the sectoral agreements. As of March 31, Bill 19 deleted reference to the sick leave sections in Section 3:

Scope of this Act

3 (1) Subject to this section, this Act applies to all employees other than those excluded by regulation.

(2) If a collective agreement contains any provisions respecting a matter set out in column 1 of the following table, and the provisions, when considered together, meet or exceed the requirements, when considered together, of the Part or section of this Act specified opposite the matter in column 2 of the table, those provisions of the collective agreement replace the requirements of that Part or section of the Act in respect of employees covered by the collective agreement:

Column 1
Matter
Column 2
Part or Section
Special clothing Section 25 (1) or (2)
Hours of work or overtime Part 4
Statutory holidays Part 5
Paid personal illness or injury leave  Section 49.1 (1) (a), (3) and (4)
Annual vacation or vacation pay Part 7
Seniority retention, recall, termination of employment or layoff  Section 63

As a result, the sick leave minimums under the Act now establish the legislated entitlements of all employees, including employees covered by the sectoral collective agreements. The Act reads as follows:

Illness or injury leave

49.1 (1) After 90 consecutive days of employment with an employer, an employee, for personal illness or injury, is entitled, in each employment calendar (new) year, to

(a) paid leave for up to the number of days prescribed, and
(b) unpaid leave for up to 3 days.

(2) If requested by the employer, the employee must, as soon as practicable, provide to the employer reasonably sufficient proof that the employee is entitled to leave under this section.

(3) Subject to subsection (4), an employer must pay an employee who takes leave under subsection (1)

(a) an amount in money equal to at least the amount calculated by multiplying the period of the leave and the average day's pay, where the average day's pay is determined by the formula

amount paid ÷ days worked

where

amount paid is the amount paid or payable to the employee for work that is done during and wages that are earned within the 30 calendar day period preceding the leave, including vacation pay that is paid or payable for any days of vacation taken within that period, less any amounts paid or payable for overtime, and

days worked is the number of days the employee worked or earned wages within that 30 calendar day period.

(4) An employer must pay an employee in a prescribed circumstance who takes leave under subsection (1) (a) an amount in money equal to at least the amount calculated in accordance with the regulations.

What this means is that CSSEA member employers must now provide five (5) days of paid sick leave to all employees in each calendar year, after 90 consecutive days of employment. The amount of paid leave is to equal at least an “average day’s pay” using the above formula for the five days.

More specifically for this sector, unionized employees are entitled to the following starting January 1 each year:

  1. All probationary employees – five days paid leave after 90 consecutive days of employment.
  2. Casual employees – five days paid leave for scheduled days not worked due to sickness or injury based on an “average day’s pay.” The paid leave is only available for accepted and scheduled shifts. A “leave” is not available for shifts not yet scheduled, even though a casual employee may have been offered and accepted the shifts at a later time.
  3. Regular full-time and part-time employees –five days paid leave based on an “average day’s pay” (not five days of paid leave at 80% as established under Article 19.1(c)) regardless of whether sufficient sick credits have been accrued. Where sick days are paid to employees who have not yet accrued sufficient credits, their sick banks will be deemed to be “in the negative” and the employees will not be able to take additional paid sick leave until sufficient credits have accrued later in the year to support a paid leave. Where there are sufficient credits, all sick leaves taken after the five days would be paid at 80% in accordance with the collective agreement.

Frequently Asked Questions

1. Do unused sick days carry over to the next calendar year?

If the five days are not used in a calendar year, the unused days do not carry over into the next calendar year. On the other hand, it is possible that an employee could receive up to 10 paid sick leave days in short order. For example, an employee is hired on September 1, 2022. Their 90 days of employment makes them eligible for sick leave as of December 1, 2022. If they use up their five days’ leave before December 31, they would still be entitled to another five days’ leave as of January 1, 2023.

2. How do we calculate sick pay for regular status employees?

Calculating the “average day’s pay” is necessary for these new paid leaves of up to five days. It is the minimum standard, and the 80% rate of pay in most circumstances will not meet the minimum standard of daily pay. Employers, at their discretion, may pay more. For example, some employers may choose for administrative ease to pay more based on scheduled hours lost due to sickness.

3. How do we calculate sick pay for casual employees?

Similarly, by using the formula in the Act for calculating an “average day’s pay.” For example, if an eligible casual employee was scheduled to work three consecutive shifts at five hours each and fell ill for all of them, and the only other shift the casual employee worked in the previous 30 days was one seven-hour shift, the average day’s pay for them would be seven hours’ pay for each of the three days. The converse would also apply: if the casual was sick on three scheduled days of seven hours each, but the only shift worked in the previous 30 days was five hours, they would be paid five hours for each of the three sick days.

4. Are we allowed to ask for proof of sickness in relation to the five days of paid leave?

Bill 19 does not disturb usual and reasonable requests for proof of illness in relation to all employees claiming sick leave.

Further, some employers may be concerned about casual employees accepting shifts and calling in sick shortly after. Employers should review their policies (or local issues provisions) to see if there is a clear expectation that casual employees only accept shifts that they are able to work. If there is a concern that an employee accepted a shift with the intention to call in sick, this should be investigated and can be addressed as a breach of policy (or local issues provision), and may result in discipline.

5. Are the new entitlements retroactive?

While the five days of paid leave are effective March 31, 2022 for the remainder of the 2022 calendar year, it does not mean that it is retroactive to January 1, 2022 for employees who were not previously entitled. Accordingly, casual employees would not be paid sick leave prior to March 31. Similarly, regular status employees would not be paid an average day’s pay prior to March 31.

If you have any further questions, please contact your HRLR Consultant or Advocate.

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Doris Sun
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