B.C. looks at making paid sick leave permanent after COVID-19 forced reckoning on issue

Law360 Canada (August 19, 2021, 11:48 AM EDT) -- One of the things the COVID-19 pandemic has done is highlight the inadequacies of sick leave requirements in Canada, a perception which led many provinces to create some form of temporary paid leave as part of their approach in the fight against coronavirus. And now British Columbia is looking to make that move permanent and seeking public input on how the system should look.

Last May the B.C. NDP government brought in amendments to the provincial Employment Standards Act that laid the groundwork for establishing minimum standards for a permanent paid sick leave entitlement after a temporary leave was adopted in March 2020.

Previously workers in the province were allowed three days of unpaid leave. But Labour Minister Harry Bains said many workers, especially those in lower-paying jobs without benefits, can’t afford to lose wages by missing work due to illness or personal injury.

“One of the most critical lessons from the pandemic was the importance of people staying home when they are sick, to contain the spread of an illness and keep workplaces productive,” he said. “That’s why we are creating a permanent paid sick leave entitlement, and we want to hear from the people who will be most affected.”

The consultation on permanent paid sick leave consists of two phases, with the province currently in stage one which involves gathering surveys from employers and workers on the kinds of paid illness and injury leaves currently provided, and how they are meeting workers’ needs. The second stage of the consultation, which will run from Sept. 20 to Oct. 25, will involve posting options for various paid sick leave models, including the numbers of paid days and other supports, for public feedback and input.

“No one should have to choose between going to work sick or losing wages,” said Bains. “Paid sick leave is good for businesses, good for workers and good for our communities. By supporting people and businesses, we will help B.C.’s economy recover faster.”

Michael Lynk, who teaches labour and employment law at Western University in London, Ont., said the conversation around paid sick leave is indicative of a big debate going on among politicians as to whether to continue an expansionary approach towards government which has been driven by the pandemic.

“It is somewhat of a revisit of the U.S. New Deal from 90 years ago,” he said. “But a question is whether we are going to see other governments in Canada, particularly those of a more conservative bent, view this expansionary spending during the period of the pandemic to be only a temporary phase and go back to their natural instinct which is shrinking government.”

Lynk said there are a number of approaches government could take to the issue, including a combination of paid and unpaid sick leave, but he added a big question is how to pay for it — whether the model involves payment only by employers or a combination of both business and government.

“The largest pitfall is political — the resistance you are going to get from the business community,” he said. “Many large employers have paid leave because of collective agreements, but smaller employers are likely to resist this and say that they live in a more precarious environment so this is an expense they can’t incur. But government has options on lessening its impact through taxes and other fiscal policies.”

Fred Wynne, a labour and employment lawyer with Vancouver’s Tevlin Gleadle Curtis, said sickness-related accommodations have existed in the Employment Standards Act for a long time but the conversation about making paid sick leave a fundamental minimum standard is “definitely pandemic-driven.”

“But I can sympathize with the argument that you don’t want to be imposing significant costs because some workplaces can’t absorb them,” he said. “It’s not one size fits all. But the societal shift has been recognizing that this is a good thing, and a necessary one.”

And Wynne agreed the pandemic has shown that what was provided before was so minimal it really wasn’t effective in keeping sick people off of work.

“There are a lot of standards which are the bare minimum, the most obvious being the minimum wage,” he said. “It has just been raised to over $15 per hour out here but that is still very little. The minimum tends to be below minimal — and that is what the three days unpaid is, it is not really enough to survive on or encourage positive change in the workplace.”

Following the public engagement process, paid sick leave will be established through regulation and come into effect on Jan. 1, 2022. To participate in the consultation process, visit engage.gov.bc.ca/paidsickleave.

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