AMENDING PAID SICK LEAVE IN BC (2022)
As of January 1, 2022, BC employers are required to provide at least 5 days of paid illness or injury leave, otherwise known as ‘sick leave’ to all employees. This new employer obligation, while laudable in its aim to support workers and protect workplaces, represents an unnecessary intrusion by the government into the employer-employee relationship, creates a new financial and administrative burden on businesses that are only starting to recover from the pandemic, and has been implemented and interpreted in a very broad way that negatively impacts employers, and in some cases, even workers.
Background
Following a brief consultation period, the provincial government announced on November 24, 2021 that in less than 6 weeks all employers would have to implement a new paid sick leave program for all employees – including part-time, full-time, and casual. As a result of this truncated process, details of the new requirement and interpretations from the Employment Standards Branch only started to be released in the fading days of 2021 and in the first week of the new year. Since then, several flaws and questionable interpretations have emerged which make this law a further burden on employers to implement, administer and afford and require it to be amended.
Allowing a Mechanism for Partial Days
Currently, the Employment Standards Act and this new sick leave requirement contains no provision for partial sick days, applicable when an employee goes home part-way through a shift, for example. The implications of this are that any amount of time an employee takes as off as sick counts as a sick “day” and triggers the payment of one paid sick day, calculated as an ‘average day’s pay’.[1]
For the employee, this means if they miss any amount of time due to illness, they use up one of their sick days. For example, an employee leaving two hours early from an 8-hour shift due to illness will use an entire paid sick day for those two hours, leaving them with less coverage for when potentially more serious illness is encountered.
More concerning, for the employer this means they must pay an employee for a full paid sick day no matter how many hours they actually missed due to illness. If an employee misses two hours of an 8-hour shift due to illness, it triggers an obligation to provide a full paid sick day payment. Compounding this, if an employee leaves a shift early due to illness, they also are owed regular wages for whatever time they did work prior to leaving, creating duplication of payments in these scenarios.
Another scenario where a partial day mechanism would be beneficial is for when employees work shifts of different lengths. In this scenario, an employee who works a regular 40-hour work week but is scheduled to work an extra 2-hour shift on the weekend would be entitled to eight hours of pay if they miss that weekend shift due to illness, not just the two hours they are actually missing. Even though the employee was only scheduled for two hours, they are entitled to an average day’s pay.
This flaw in the legislation negatively impacts both employers and employees and should be adjusted to provide for partial sick days by creating a mechanism for hours worked in a day to be deducted from the sick pay provided, and for payment of less than an average day’s pay when the hours actually missed are less than that average.
Implementing Further Eligibility Criteria for Casual and Part-Time Employees
The new paid sick leave was extended to include not just full-time employees, but all part-time and casual employees as well, with very little in terms of limitations on their eligibility for the leave. It is important to note that for many businesses, when part-time or casual employees are unable to work, employers must bring in replacement staff to cover that shift, creating a second layer of cost beyond the initial paid sick day.
As government has already included casual and part-time employees in the legislation, implementing further eligibility criteria in the form of a minimum-hours-worked requirement would be beneficial.
Currently, as long as an employee works or earns any amount in the 30 days preceding a sick day, they are eligible for the day to be paid. Instead, to be eligible for paid sick days a part-time employee should be required to have worked a minimum number of hours in the 90 days preceding the day in question, such as 200 hours (or approximately two full shifts a week). This would be similar to the model already used by employers to gauge whether employees are entitled to statutory holiday pay and would limit this new paid obligation to workers with a more consistent tie to the employer
Additionally, part-time and casual employees are eligible for five paid sick days from all their employers. This could mean a person employed at multiple businesses simultaneously, or if they have multiple seasonal employment positions, is eligible for 10, 15 or 20 sick days, depending on the number of employers. Capping the number of sick days a person can claim in a single year will make the benefit more consistent and reduce the chances of employees abusing or unfairly taking advantage of the benefit.
Reducing the Burden on Employers and Providing for 3 Paid Sick Days
During the development of this sick leave requirement, the government considered three options of either three, five, or 10 days in duration. Of these three options, the three-day model would have the least economic impact on businesses and would have been the most targeted and appropriate allotment.
In the provincial government’s own paid sick leave public survey, it was found that 50% of employers thought more than three days of mandated paid sick leave would have a major negative impact on their business, with that increasing to 75% for six-10 days. This compares to only 25% who foresaw problems with providing up to three days, making the three-day model the option with the least negative impact on business.[2]
The provincial government’s survey also found that more than half of BC workers had paid sick leave already, with 90% of them receiving more than three days. However, the survey also revealed that 70% of those workers did not even use all of those paid sick days they already had. This suggests that providing anything more than three days of paid sick leave would be an over-allotment, would not likely be fully utilized by workers anyways, and thus would be unnecessary.
Further, where government must step into the free market to provide minimum standards, its intervention should seek to do so in as limited a fashion as possible. If the government wished to regulate this area, the focus should have been on establishing a minimum, base standard only, and thus government should have opted for the least prescriptive model of three-days.
As changing the number of days provided would require a revision to regulations only – not fully new legislation – a revision to reduce the provided days to three should be implemented, reducing the burden and cost on employers already struggling with surging wage and materials costs, labour shortages, rising inflation, and increasing business costs.
THE CHAMBER RECOMMENDS
That the Provincial Government:
- Create a mechanism in the Employment Standards Act and Regulations to allow for partial sick days, allowing employers to deduct the wages paid for hours worked during a partial sick day from the amount owed for the “sick day”.
- Implement a minimum-hours-worked requirement for eligibility for paid sick days
- Cap the total number of sick days a person is eligible to claim in a year regardless of how many employers they have.
- Amend the Employment Standards Act Regulations to reduce the number of paid sick days provided to three.
[1] Employees are entitled to an ‘average day’s pay’ for each sick day. An average day’s pay is calculated by dividing the amount paid or payable in the 30 calendar days before the leave by the number of days worked during that 30-day period.
[2] Summary of Government of BC’s engagement efforts: https://engage.gov.bc.ca/govtogetherbc/impact/permanent_paid_sick_leave_results/