Paid COVID-19 Leave Now, and Paid Sick Leave in 2022

Bill 13 Employment Standards Amendment Act (No. 2), 2021 (“Bill 13”) received Royal Assent on May 20, 2021. Bill 13 is an amendment to the British Columbia Employment Standards Act (the “ESA”) and does two things:

• First, it adds temporary paid COVID-19 leave of up to three days (“Paid COVID Leave”). The BC government announced a reimbursement program for eligible employers, but few details are clear at this point.
• Second, it adds permanent paid sick leave, effective January 1, 2022, with the amount of days yet to be determined.

The following information relates to the first addition, the Paid COVID Leave. The Paid COVID Leave is effective as of May 20, 2021 and ends on December 31, 2021. It applies to all provincially regulated employees and there is no minimum amount of employment time to qualify.

In March 2020, section 52.12 was added to the ESA for unpaid leave in prescribed COVID-19-related circumstances. The Paid COVID Leave adds three days of paid leave for employees meeting the criteria found in section 52.12(2)(a), (b), and (c) of the ESA:

(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;

Items (a) and (c) are relatively straightforward and narrow.  Item (b) is vast, evolving and requires a deeper review to understand what situations are covered and what are not. That is beyond the scope of this update.

The Paid COVID Leave provides for a maximum of three paid days between May 20 and December 31, 2021. Even if an employee may meet different eligibility criteria at different points of time, the maximum is a total of three paid days.

Employees must request Paid COVID Leave; it is not presumed. Employers can request “reasonably sufficient proof” that one of the grounds for Paid COVID Leave applies to the employee. An employer’s ability to request proof is restrained as employers cannot request “a note from a medical practitioner, nurse practitioner or registered nurse.” Examples of reasonably sufficient proof potentially include: copies of the instructions from the health officer, authority or centre giving direction; verbal or written details from the employee; travel records; and calls, emails, or text messages regarding the orders/guidelines.

If an employee is eligible for and requests Paid COVID Leave, they are not permitted to return to work until the conditions are met to return. For instance, if the employee is diagnosed with COVID-19 and requests Paid COVID Leave, they cannot return until they have met the BC CDC guidelines, which require at least 10 days self-isolation following a diagnosis. Also, Paid COVID Leave is not related to, or contingent on, vaccination status.

The formula for the Paid COVID Leave’s “average day’s pay” is the same as ESA statutory holiday pay, which uses a 30 calendar day period and divides the amount paid (excluding overtime) by the number of days worked. For example, an employee who works 20 days in a 30-day period and earns $4,000 (excluding overtime), would have an average day’s pay of $200, less statutory deductions.

For unionized employers, the Paid COVID Leave does not apply if their collective agreement has provisions for items (a), (b) and/or (c), and those provisions “meet or exceed” the ESA Paid COVID Leave. This is similar to the current ESA section 3 analysis.  While some collective agreements will have paid sick leave provisions which could apply to item (a), almost none will have paid leave provisions that will apply to items (b) or (c).  Depending on the terms of the paid sick leave, an argument can be made that paid sick leave provision alone meets or exceeds the ESA Paid COVID Leave, as the items can be assessed as a package.

Bill 13 does not address the reimbursement program. Government press releases have indicated that the government will reimburse $200/day per employee for employers that do “not have an existing sick leave program”. This is concerning language as items (b) and (c) do not require the employee to be sick, so there may be a gap in the reimbursement program. The reimbursement program will be administered by WorkSafeBC starting in June 2021, and will not affect employer premiums or accident funds.  More details will be available in June 2021.

Ideally, with COVID numbers going down in BC, the Paid COVID Leave will not see major use by employees.

The Paid Sick Leave starting January 1, 2022 is a separate issue and more details will be announced later this year.

Please contact our office if you have questions.

Michael R. Kilgallin is a partner at the Vancouver-based employment and labour law boutique of Roper Greyell LLP and provides strategic advice to employers in labour relations, employment, privacy and human rights matters.  Michael can be reached by e-mail at mkilgallin@ropergreyell.com.

Katelin Dueck is an articled student at Roper Greyell and assisted in writing this article.  She is interested in all areas of workplace law, including employment, labour and workplace human rights and privacy law.

For more information about Michael and Katelin and the work they do at Roper Greyell, 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.