Illness and Injury Leave Under the Employment Standards Act in the Unionized Context

July 3, 2024

Article by: Brittany Therrien

Section 49.1 of the B.C. Employment Standards Act (the “ESA”) addresses illness or injury leave (sick leave) and provides as follows: after 90 consecutive days of employment, an employee is entitled to paid leave for up to the prescribed number of days, and unpaid leave for up to 3 days, in each calendar year due to illness or injury.  The employee must provide the employer with reasonably sufficient proof of his or her illness or injury and the employer must pay the employee an average day’s pay in accordance with the formula set out in section 49.1.

Section 45.031 of the B.C. Employment Standards Regulation states as follows:

Illness and injury leave

45.031  For the purposes of section 49.1(1)(a) of the Act, the prescribed number of days is 5 days.

The ESA therefore requires all employers to provide 5 paid (and 3 unpaid) sick days to those employees who have been employed for 90 consecutive days or more.

There are a limited number of cases that have dealt with this section of the ESA and how it applies to workplaces with collective agreements.

In Allied Ready Mix Concrete (a Division of Lehigh Hanson Materials Ltd) v. Teamsters, Local 213 (Leave Under Employment Standards Act Grievance), [2023] B.C.C.A.A.A. No. 61 (Saunders), the union argued that the employer’s obligation to provide employees with the ESA sick leave was independent and in addition to any collective agreement obligations.  The employer argued that it could account for the ESA sick leave under the collective agreement terms.  The employer amended its sick leave policy to incorporate the 5 days of paid leave with the short-term disability provisions.  The arbitrator rejected the union’s argument that the ESA sick leave was in addition to collective agreement provisions, but did not agree with aspects of the employer’s policy to integrate sick leave within an existing short-term disability plan.

In another case, Teck Highland Valley Copper Partnership v. United Steel Workers, Local 7619 (Partial Sick Days Grievance), [2023] B.C.C.A.A.A. No 24. (Knapp), the issue was whether the grievor was entitled to receive an average day’s pay for compensation on a leave day or an average day’s pay in addition to pay for hours he worked before taking leave.  The grievor worked a 4×12 shift schedule.  On the day he went home sick, he was paid 6 hours for his time worked that day before going home and 6 hours for illness leave for a total of 12 hours.  Because the ESA does not allow for partial sick days, the union argued he should have been paid 12 hours of paid leave.  The arbitrator disagreed with the union and found that the approach applied by the employer was correct, despite the language of the ESA.

An instructive case on these issues is the decision in FG Deli Group Ltd v. United Food and Commercial Workers Union, Local 247 (ESA Sick Leave Grievance), [2023] B.C.C.A.A.A. No. 102 (Brown), where the collective agreement provided for accrual of sick leave hours and the employer had implemented a policy to ensure it complied with section 49.1 of the ESA.  The arbitrator found the above cases were relevant to the analysis of the intent of section 49.1 of the ESA, even though those cases dealt with different matters.  The arbitrator held that the intent of the ESA is to ensure employees have access to 5 paid sick days of their choosing but not to create a “windfall” for employees.

Another line of cases follow the decision in Vancouver (City) v Vancouver Firefighters’ Union Local 18 (Sick Leave Grievance), [2023] BCCAAA No 19 (Gregory), which stated that employees are entitled to “sick days without penalties.”  The issue in this case was that the initial four days of sick leave were funded, indirectly, by the employees.  The arbitrator therefore found that the sick leave provisions in the collective agreement did not comply with the ESA.

The British Columbia Labour Relations Board recently dismissed the employer’s appeal of this decision in Vancouver (City) (Re), 2024 BCLRB 56 (Matthews). Similarly, the Board found that sick days funded in part by employees do not comply with the ESA injury or injury leave provisions because the employees should not be paying – the employer should.

This decision was followed in Canadian Maritime Engineering Ltd (Alberni) v Marine Workers and Boilermakers, Local 1 (ESA Paid Sick Days Grievance), [2024] BCCAAA No 32 (Hall), where the employer had a spending account that employees could use each year for health, dental, sick, or leave days. Any unused amount would be deposited in the employees’ RRSP accounts the following year. The arbitrator found that requiring employees to use this account for sick days that they were entitled to under the ESA was a violation of the ESA because otherwise the money would go into their RRSPs – the employees were essentially out of pocket.

In sum, section 49.1 of the ESA is not in addition to the sick leave provisions in a collective agreement. As well, the section does not replace the sick leave provisions in the collective agreement.  The employer needs to ensure that it complies with section 49.1 of the ESA with the existing sick leave provisions of the collective agreement, which entitle all employees who have worked 90 consecutive days to take 5 paid and 3 unpaid sick days, funded entirely by the employer.