5 days of annual paid sick leave for provincially regulated employees, effective January 1, 2022; 10 days of annual paid sick leave coming for federally regulated employees; and "Indigenous identity" recognized as a protected characteristic under British Columbia human rights law.
It is shaping up to be a busy year-end for British Columbia employers, with significant changes having been implemented by the provincial government in respect of paid sick leave and the recognition of "Indigenous identity" as a protected characteristic. In addition, the federal government is advancing a signature election promise to implement paid sick leave for federally regulated employees. We summarize these developments below.
British Columbia Paid Sick Leave
On May 20, 2021, the British Columbia government gave royal assent to the Employment Standards Amendment Act (No 2), 2021, amending the Employment Standards Act (the "Act") to enact a temporary COVID-19-related paid leave entitlement of 3 days in 2021, which is set to expire on December 31, 2021, and to create a permanent paid personal illness or injury leave entitlement ("paid sick leave") commencing January 1, 2022. The amendments did not specify the number of permanent paid sick leave days that employees would receive but authorized the government to prescribe an amount by regulation. After a consultation process with employers and employees, the government announced that eligible employees will be entitled to 5 paid days for personal illness or injury per year.
The paid sick leave entitlement will be in addition to, and not replace, the 3 days of unpaid personal illness or injury leave currently provided for under the Act.
Eligible employees are those employees regulated by the Act that have been employed by their employer for at least 90 consecutive days. Full-time, part-time, temporary and casual employees will be eligible for the paid sick leave.
Employees will not need to take paid sick leave days consecutively, but any amount of sick time taken during a day will count as one day of sick leave, unless the employer and the employee otherwise agree.
Employers must pay eligible employees an average day's pay for each day of paid sick leave taken, calculated as the amount paid or payable to an employee for work done during the 30 calendar day period preceding the leave (including vacation pay, but excluding overtime pay), divided by the number of days the employee worked or earned wages within this period.
Employees are not required to give advance notice to their employer to take a paid sick day, but an employee who cannot work due to illness or injury must notify their employer of their absence as soon as they are able. Employers may ask for reasonably sufficient proof of an illness or injury, and the employee must provide such proof as soon as practicable.
Takeaway for employers
Employers with collective agreements, paid sick leave policies or flexible paid time off policies that already meet or exceed the statutory requirement to provide 5 days of paid sick leave annually will not need to take action in response to this new requirement. However, to avoid confusion, non-unionized employers may wish to consider notifying their employees and updating their policies to make it clear that the new statutory paid sick leave entitlement is specifically included in, and will not be in addition to, any entitlements under their existing policies.
For unionized employers whose collective agreements do not presently meet or exceed the new paid sick leave entitlements, such entitlements will be deemed to have been incorporated into their collective agreements.
Non-unionized employers who have no paid sick leave policies, or whose paid sick leave or flexible paid time off policies do not meet or exceed the statutory requirements (i.e., they do not provide for 5 days of paid sick leave, or do not pay out at the proper calculation of an "average day's pay"), will need to revisit their practices and policies to ensure that they provide employees with their new statutory minimum entitlements commencing January 1, 2022. While employers do not need to have a written policy providing for paid sick leave, it is best practice to have one and to review it annually.
Unlike with the temporary COVID-19 related paid sick leave, there will be no government reimbursement program made available to employers.
Federal Medical Leave of Absence with Pay
On November 26, 2021, the Canadian government introduced Bill C-3, An Act to amend the Criminal Code and the Canada Labour Code ("Bill C-3"). If passed into law, Bill C-3 will amend the Canada Labour Code (the "CLC") to provide for 10 days of medical leave of absence with pay ("paid medical leave") for federally regulated employees. Specifically, Bill C-3 would amend the CLC as follows:
- employees will earn 1 day of paid medical leave for each completed month of continuous employment with their employer, up to a maximum of 10 days per year. However, unused paid medical leave will carry forward to January 1 of the subsequent calendar year and reduce the 10 paid medical leave days that can be earned by the employee in that subsequent year;
- employees on paid medical leave must be paid at their regular rate of wages for their normal hours of work;
- employees may take paid medical leave in one or more periods, but the employer may require that each period of paid medical leave be taken at a minimum of 1 day's duration;
- an employer may, in writing, require an employee to provide a certificate from a health care practitioner that the employee was incapable of working for the period of their paid medical leave. However, the employer must make this request no later than 15 days after the employee returns to work from the paid medical leave;
- employees will continue to receive 3 days of paid and 2 days of unpaid personal leave annually (for things like carrying out responsibilities relating to the health or care of their family members or the education of their children, addressing urgent matters concerning themselves or their family members, or attending their citizenship ceremony). However, employees will no longer be able to use personal leave for treating illness or injury. Employees will continue to receive up to 17 weeks of unpaid medical leave of absence as a result of personal illness or injury, organ or tissue donation, or medical appointments during working hours; and
- employers may require an employee who has taken an unpaid medical leave of absence for 3 days or longer to provide a certificate from a health care practitioner that the employee was incapable of working for the period of their unpaid medical leave of absence.
Takeaway for employers
If Bill C-3 passes, the amendments respecting paid medical leave would not become effective immediately, but on a date to be determined by the federal cabinet. However, if the amendments are made, employers will be required to provide employees with 10 days of annual paid medical leave, in addition to the existing 3 days of annual paid personal leave and 2 days of annual unpaid personal leave.
The Canadian government has announced they will engage in a consultation process with federally regulated employers and employees in respect of Bill C-3, and that it plans to develop a national action plan to legislate paid sick leave across the country. Impacted employers are encouraged to participate in the consultation process.
Indigenous Identity Added to the British Columbia Human Rights Code
On November 17, 2021, the British Columbia government introduced Bill 18, the Human Rights Code Amendment Act, 2021 ("Bill 18"). Bill 18 speedily passed and received Royal Assent on November 25, 2021, amending the British Columbia Human Rights Code (the "HRC") to expressly include "Indigenous identity" as a protected characteristic against discrimination.
The British Columbia Human Rights Tribunal has previously interpreted protected grounds such as race, colour, ancestry, place of origin and religion to extend to indigenous identity. Also, a 2020 report entitled Expanding Our Vision – Cultural Equality and Indigenous Peoples' Human Rights recommended, among other things, that "Indigenous identity" be added as a protected characteristic under the HRC because existing protected characteristics did not adequately address the discrimination that indigenous peoples reported experiencing.
The HRC also now includes a definition of "Indigenous", although it roundaboutly defines it as meaning "Indigenous within the meaning of "Indigenous peoples" as defined in the Declaration on the Rights of Indigenous Peoples Act". That definition in turn adopts the definition of "aboriginal peoples" in the Constitution Act, 1982, which includes "the Indian, Inuit and Métis peoples of Canada".
Takeaways for employers
Bill 18 is uncontroversial for employers who are cognizant of their obligations to not engage in discriminatory employment practices. However, the express inclusion of "Indigenous identity" as a protected characteristic under the HRC may also serve to send a powerful symbolic message of inclusion to indigenous and non-indigenous peoples alike.
We will monitor developments in respect of the above legislative amendments and proposals and provide any pertinent updates as they become available. Employers with specific questions regarding the above amendments and proposals can seek guidance from experienced legal counsel at Stikeman Elliott.
The author would like to acknowledge the support and assistance of Aya Taher, articling student at law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.