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Feb 7, 2022

Paid Sick Leave in B.C. – The Devil Is In The Details (Guest Blog)

 

Paid Sick Leave in B.C. – The Devil Is In The Details
Robert Smithson - Smithson Employment Law Corporation

I recently discussed the B.C. government’s step of adding an entitlement to paid sick leave to B.C.’s Employment Standards Act (where it’s referred to as “illness or injury leave”).  That paid leave, up to 5 days annually, became effective on January 1, 2022.

It’s becoming clearer what these new rules mean for employers, and the picture is not a pretty one.  In fact, it’s downright ugly.  There’s nothing inherently wrong with a requirement to provide paid sick leave (most employers already do) but, as they say, the devil is in the details.

B.C.’s New Paid “Illness or Injury Leave” Structure
The Employment Standards Branch’s website indicates that, after 90 days of employment, all employees can take up to 5 paid days (and 3 unpaid days) of job-protected leave in their employment year, based on their starting date.  

Employees can take time away from work without warning; they don't need to give the employer advance notice.  Employers can ask for proof that an employee is entitled to this leave, but the ESB’s website suggests that asking for a doctor’s note may not be “reasonable” for short absences.

Here are several examples of how horribly the design of this paid sick leave has been handled. The emphasis, in each instance, is my own.

1. Employees Holding More Than One Job
The ESB’s website states, “If an employee works 2 part time jobs at the same time, they get 5 paid sick days and 3 unpaid days per job after 90 days of employment with each job.” 

So, an individual who holds two or three (or more) part-time jobs can miss work due to illness – and be paid full wages – cumulatively 10, 15, or 20 (or more) times in the course of the year.  Do you think anyone is going to abuse that entitlement?  Heck, why not hold ten jobs so you can get paid full wages for 50 days of illness in the course of each year??
 

2. Illness Occurring on a Statutory Holiday
The ESB’s website states, “If an employee qualifies for statutory holiday pay and is scheduled to work on the statutory holiday but takes paid sick leave, they would be entitled to an average day’s pay for both the statutory holiday and the paid sick leave.”

This means that if an employee is scheduled to work on a statutory holiday, then calls in sick, he/she gets paid twice for the same day.  For not working.  Do you think any employees are going to catch onto this and volunteer to work on statutory holidays only to call in sick for that day?  There are ten statutory holidays in the year, so why not get paid 20 days’ wages for not working??
 

3. An Average Day’s Pay
Here’s where the ESB’s implementation of the new paid sick leave rules gets really weird.  The ESB’s website states, “An employee who regularly works Monday to Friday, 8 hours per day, 40 hours per week, is scheduled to work an extra 2 hours on Saturday. The employee calls in sick on Saturday. In this example, the average day’s pay would equal 8 hours at regular wage, not 2 hours. Even though the employee was only scheduled for 2 hours, they are entitled to an average day’s pay.” 

So, even though the employee was only scheduled to work 2 hours, if the employee calls in sick, he/she will be entitled to be paid for 8 hours.  No one is going to abuse that… no, not at all.
 

4. Casual Employees Refusing A Call-In
The weirdness only gets worse… the ESB’s website states, “A casual employee who has been employed for many years is scheduled to work two days in March. They do not earn any wages or work any shifts in January or February. On March 1st they work one 8 hour shift. They call in sick for their 3 hour shift on March 2nd. They are entitled to 8 hours of wages (“an average day’s pay” based on the calculation) for the March 2nd sick day.”

Yes, that’s right.  A casual/on-call employee who refuses a 3-hour shift will be entitled (in this scenario) to be paid 8 hours’ wages.  As we all know, some types of businesses have to maintain a lengthy list of casual/on-call employees, and they may have to call a number of people in order to find someone to fill a shift.  Any number of people could refuse the shift due to illness, meaning that the employer could end up paying several people 8 hours of wages in order to find one person who will work that 3-hour shift. Sheer madness!!!
 

5. Employees Leaving During A Shift
This is perhaps the most egregious example of what the new paid sick leave rules require.  It’s not stated expressly on the ESB’s website but it was implied in the initial announcement of the new rules, and it’s been confirmed for me by a representative of the ESB.

Consider the situation of a full-time employee who attends work for his/her regular 8-hour shift but goes home sick with 1 hour to go in the shift.  The new rules will require that, in addition to wages for 7 hours already worked, he/she will be entitled to another 8 hours of sick pay.  Yes, that’s 15 hours’ wages for working 7 hours.  If that isn’t the most insane thing I’ve ever seen come out of an employment statute, I don’t know what is.

As I stated earlier, there is nothing inherently wrong with requiring employers to provide paid sick leave; many employers already do so. But the B.C. government’s implementation of the 5 days of paid sick leave is entirely non-sensical.  It amounts to a windfall for employees, pretty much a bonus of (at least) 5 additional days of pay in the year (without working). If that’s what our provincial government sought to do, they should have just come out and said that.

For many businesses, whose existing sick leave policy substantially exceeds the new 5-day sick leave requirement, these rules may have no real impact.  After all, if you exceed what the Act requires, you really don’t have to worry about it. But, the businesses which will be most affected by this – fast food franchises, hotels, gas stations, convenience stores, etc. – surely can ill-afford to be paying these sorts of windfalls to employees for not working. Taken to their extreme, the new sick pay rules could be ruinous for some businesses struggling to remain profitable. 

And, because these new paid sick leave days are a “protected” leave under the Act, the employer must not terminate the relationship or change a term or condition of the employment as a result of an employee exploiting the new rules. Imagine that yours is a fast-food restaurant, you’re trying to fill a 4-hour shift, you call 5 employees (who all normally work 4-hour shifts), and 4 of them reject the shift, claiming to be sick. Under these new rules, you’d end up paying 20 hours of wages in order to fill that 4-hour shift.  Ouch.

Profit, unfortunately, doesn’t appear to have been part of the B.C. government’s equation when designing these new rules. Nor, it seems, was logic.

For more from Robert Smithson, please visit: https://www.smithsonlaw.ca/.