Partial Sick Leave Days Under the Employment Standards Act

A recent arbitration award issued in the private sector provides CSSEA members with guidance on how to interpret the Employment Standards Act (ES Act) sick leave sections. Specifically, the issue that was decided by the arbitrator was whether an “average day’s pay” ought to be paid to an employee who fell ill for only a part of their shift, in addition to the amount paid for the time already worked in the partial shift.

The union claimed that the full “average day’s pay” was owing to the employee, in addition to time worked for the day, bolstered by an interpretation guide issued by the Employment Standards Branch. CSSEA members have also been relying on this guide. In the circumstance of this case, the grievor attended work for the first six hours of his 12 hour shift before going home sick. The employer paid six hours of regular pay for the time worked, plus six hours for the remainder of the day so that the employee suffered no loss of pay due to falling ill. However, the union claimed an additional six hours of sick pay based on the interpretation guide and that an “average day’s pay” was payable under the ES Act. The employee would have been paid 18 hours of pay in total for the day, when missing a portion of his 12 hour shift.

The Arbitrator commented on the purpose of the new ES Act sick leave provisions:

“I have concluded the intent of the Act is to provide employees with wage replacement to take leave when ill, so they do not have to struggle financially with the decision to go to work ill while at the same time helping to minimize transmission of the virus. I find the legislative debates clearly illustrate this intent and nowhere indicates an intention to provide employees in this situation with a financial windfall when using the entitlement as to do so otherwise could indeed create an unintended incentive. In other words, the intent of the Act is to put employees in a make whole position by avoiding financial harm due to illness or injury.”

The Arbitrator acknowledged that “partial” sick days are not contemplated by the ES Act and further found that: “the use of the word partial in the context of the entitlement was configured in such a way that regardless of whether the time taken off on a given day amounts to a partial day or a full day, it will result in a full day of the allotment being considered used and deducted from the annual allotment.”

Accordingly, the grievance was dismissed and a “day” of sick leave was deducted from the calendar year allotment available under the ES Act even though only part of a shift was booked off for sick leave. In relation to the Guide, the Arbitrator ruled that:

“While my conclusion is contrary to the guide,… the government's policy interpretation is neither binding nor a legal authority. Accepting the interpretation outlined in the Guide would be contrary to the intention of the Legislature and the object of the Act by creating an unintended result by providing greater compensation to an employee who works only a portion of their scheduled shift compared to an employee who works their full scheduled shift.”

When applying the ES Act sick leave provisions, CSSEA recommends that employers no longer follow the guide, and pay employees an “average day’s pay” but capped at the hours lost due to sickness in the remainder of the shift.

Example #1:
If an employee’s average day’s pay is eight (8) hours and is scheduled to work an eight (8) hour shift, and the employee works the first 2 hours and leaves work sick, they would be paid 6 hours sick pay for the remainder of the shift (not the 8 hours of average day’s pay), for a total of 8 hours’ pay for that shift.

Example #2:
If an employee’s average day’s pay is seven (7) hours and is scheduled to work a ten (10) hour shift, and the employee works the first 2 hours and leaves work sick, they would be paid the average day’s pay of 7 hours sick pay for the remainder of the shift, for a total of 9 hours’ pay for that shift.

Example #3:
If an employee’s average day’s pay is seven (7) hours and is scheduled to work a ten (10) hour shift, and the employee works the first 8 hours and leaves work sick, they would be paid 2 hours sick pay for the remainder of the day (not the 7 hours of average day’s pay), for a total of 10 hours’ pay for that shift.

In all of these situations, a full day would be deducted from the five days available annually under the ES Act, and in none of the circumstances would the employee be paid for more than the scheduled hours for that shift.

As a reminder, the ES Act is the minimum provincial standard for all employees, therefore, if Article 19.1 of the Collective Agreement provides for greater sick leave pay than set out above, it would be applied in relation to the first five days of sick leave in any calendar year covered by the ES Act. From the sixth day of sick leave in any calendar year, employers would continue to pay sick leave in accordance with the collective agreement provisions as the ES Act no longer has application.

On a related matter, under Article 19.3, employees may use sick leave for medical/dental appointments. The above principles would equally apply to these partial sick days. However, some employees who are eligible to use an ES Act sick leave day for an appointment may not now wish to use them, given the decision on the amount of sick pay and that one full day of ES Act sick leave would be deducted. If employers are agreeable to departing from the application of the statutory sick days for these appointments, and instead use Article 19.3 as usual, please ensure that the employee’s preference is confirmed in writing in case a subsequent dispute arises.

For more information on how the ES Act sick leave provisions intersect with Article 19, please refer to this CSSEA Info.

The arbitration award is linked here.

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