New Amendments to Paid Sick Leave Under Employment Standards Act

Effective January 1, 2022, the BC government added employer-paid sick leave under BC’s Employment Standards Act (“ESA”). Previous RG updates have covered this topic, please see our articles on November 25, 2021, and January 26, 2022.

The BC government announced on Monday, March 28, 2022, that it would introduce further amendments to the ESA paid sick leave. Bill 19 introduces three changes:

• ESA paid sick leave is removed from the “meet or exceeds” table in section 3 of the ESA, meaning unionized employers can no longer avoid the strict application of the ESA paid sick leave, regardless of their collective agreement provisions. Unionized employers will be required to provide the ESA paid sick leave or top-up any existing collective agreement provisions to the ESA paid sick leave entitlements.
• ESA paid sick leave is removed as an exception from section 3(6), meaning that union employees will now have to proceed by way of grievance/arbitration for any ESA paid sick leave dispute, and not through the Employment Standards Branch complaint process.
• Under section 49.1, “employment year” is replaced by “calendar year” thus simplifying the calculation for an employee’s entitlement to sick days. This means that employers will no longer need to track each individual’s employment anniversary date for the purposes of paid sick days. Instead, the 5 paid sick days entitlement will apply for the calendar year. If an employee has already received 5 paid sick days in 2022, this change does not entitle them to additional paid sick days in 2022. There may be employees who, due to the old employment year calculation, may have already received more than 5 days of paid sick leave this year. There is no clear mechanism to seek repayment in this scenario.

The amendments will be effective upon Royal Assent and are not retroactive.  The status of Bill 19’s Royal Assent can be tracked here.

Please contact our office if you have questions.

Michael R. Kilgallin is a partner at Roper Greyell LLP, where he provides advice to employers on employment, labour relations and human rights issues in the workplace.  He can be reached at mkilgallin@ropergreyell.com.

Janna Crown is a lawyer at Roper Greyell LLP, practicing in all areas of workplace law, including human rights, labour law, and WorkSafeBC matters.  She can be reached at jcrown@ropergreyell.com.  For more information about Michael, Janna, and the rest of the Roper Greyell team, please visit www.ropergreyell.com.

While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein.  The article is for general information purposes only and does not constitute legal advice.