Over the past several months, the B.C. Government has introduced several changes to the Employment Standards Act (“ESA”). As recent as May 20, 2021, new amendments have come into force that now provide employees up to three days paid sick leave for COVID-19 related absences. Employers and employees should beware, however, that not all COVID-19 related absences qualify for paid leave under this new program.

Three Days Paid Sick Leave

Between May 20, 2021 and December 31, 2021, where an employee is unable to work due to:

(i) a diagnosis of COVID-19;

(ii) an order to quarantine or self-isolate; or

(iii) a direction not to work by their employee due the employee’s potential to spread the virus,

the employee is entitled up to three days of paid sick leave.

This entitlement for paid leave is more restrictive than for unpaid leave, and may not be claimed where the employee is absent due to an inability to return to B.C. or their responsibility to provide care to a dependent person (see our previous blog post on unpaid leave unpaid leave where such absences do qualify).

Additionally, changes to the ESA for the three days of paid sick leave are not retroactive. In other words, if an employee missed work due to COVID-19 prior to May 20, 2021, they are unable to rely on the legislation to request compensation for such time.

I Already Have a Paid Sick Leave Program

If a non-unionized employee takes paid sick leave due to one of the COVID-19 related reasons described above, the employer must pay the employee their average daily rate of pay for each day of leave.

If the employee is unionized, however, and the collective agreement provides at least three days of paid leave at their average daily rate for each of the COVID-19 related reasons noted above, the employee will only be entitled to paid leave pursuant to the terms of such collective agreement. Where a collective agreement fails to provide employees these benefits, either in whole or in part, the requirement to pay employees up to three days paid sick leave will be deemed to be incorporated into the collective agreement automatically.

Employer Reimbursement Program

The B.C. Government has stated that the Province will reimburse an employer up to $200 a day where such employer does not have an existing sick leave program. Reimbursements will be administered by WorkSafeBC and will not be part of the workers’ compensation system nor will they impact WorkSafeBC’s employer premiums or accident fund.

Asking for a Doctor’s Note?

Where an employee requests paid or unpaid leave due to COVID-19, the employer is entitled to ask for reasonably sufficient proof that such employee is entitled to such leave. Keep in mind, however, that the ESA explicitly prevents an employer from requesting a doctor’s or nurse’s note as proof.

Overview of COVID-19 Related Leave

With the whirlwind of recent amendments, we wanted to briefly summarize the different circumstances under which an employee may take leave due to COVID-19. For more information, see our previous blog posts on unpaid leave and vaccination leave.

Three days paid leave	Unpaid leave of absence	Vaccination leave
As of May 20, 2021 to December 31, 2021, an employee may take three days paid leave where such employee is:(i)    Diagnosed with COVID-19 and the employee is acting in accordance with instructions from a medical health officer, doctor, or nurse;(ii)   Quarantined or self-isolated in accordance with an order made under the Quarantine Act, an order by the provincial health officer (Dr. Bonnie Henry), or guidelines of the British Columbia Centre for Disease Control or Public Health Agency of Canada; or(iii)  Directed not to work by their employer due to the employer’s concern about the employee’s exposure to others.	As of January 27, 2020, an employee is entitled to unpaid leave where such employee is:(i)    Diagnosed with COVID-19 and the employee is acting in accordance with instructions from a medical health officer, doctor, or nurse;(ii)   Quarantined or self-isolated in accordance with an order made under the Quarantine Act, an order by the provincial health officer (Dr. Bonnie Henry), or guidelines of the British Columbia Centre for Disease Control or Public Health Agency of Canada;(iii)  Directed not to work by their employer due to the employer’s concern about the employee’s exposure to others;(iv)  Outside of the province and unable to return to B.C. due to travel restrictions; or(v)   Providing care to a dependent[1], including because of a school or daycare closure.	As of April 19, 2021, the B.C. Government introduced unpaid vaccination leave.(i)  Employees who need time off receive the vaccine, or to help a dependent family member receive the vaccine, entitled to take an unpaid job-protected leave.(ii) This leave is also available for individuals who suffer from conditions putting them at a high-risk of COVID-19 and for those receiving the Canada Recovery Sickness Benefit or the Canada Recovery Caregiver Benefit.

Want More?

COVID-19 continues to have a serious impact on both employees and employers, and we realize that changes to government programs and legislation can be difficult to keep up with. If you have any questions or would like advice about COVID-19 and how it affects your business, employees or employment, please contact Ryley Mennie, Lou Poskitt, or Connor Levy from our Workplace Law Group.

Footnote

[1] A “dependent” includes: a person under 19 years of age who under the care of the employee by court order or because the employee is the person’s parent or guardian; and a person who is 19 years of age or older, is dependent upon the employee, and is under the day-to-day care and control of the employee who is their person’s parent or former guardian.