COVID-19 Update re Sick Days and Vaccines: what Employers and Employees need to knowMay 12 2021
As the third wave of the pandemic continues and we race to vaccinate, the BC government has made several announcements impacting time off for workers for both sickness and vaccination. We have outlined these announcements and answered some common COVID-19 workplace questions below.
CHanges to sick days
On May 11, 2021, the provincial government introduced legislation entitling all BC workers to receive up to 3 days of paid sick leave until the end of 2021. This includes if workers are required to stay home because they have symptoms of COVID-19; are self-isolating; are waiting for test results; are following public health orders; or are directed by the employer to stay home due to exposure risk.
Once law, it will be made available to all workers who are covered under the BC Employment Standards Act and who do not already have a paid sick leave benefits plan.
What this means for employees
Full-time and part-time employees will be eligible for their full wages for up to 3 days. The exact formula for calculating the entitlement and other details will be made available once the legislation becomes law. It is likely the legislation will be applied retroactively to at least the date it was announced (May 11, 2021).
What this means for employers
Employees are entitled to their regular wages during the qualifying 3 days off. If your workplace does not have an existing paid sick leave program, the province will reimburse you up to $200 per day for each worker. This will be administered through WorkSafeBC. Details will be made available in June.
Notably, the government indicated the effect of this legislation will be limited to December 31, 2021, however it intends to introduce permanent paid sick leave provisions for BC workers beginning in 2022 after further consultation.
The BC government recently amended the Employment Standards Act to guarantee employees paid leave for up to 3 hours for each of their COVID-19 doses. The law is retroactively applied to any doses administered on or after April 19, 2021 and all employees are entitled to this leave no matter how long they have been employed.
How pay is calculated
The amount owed by the employer is determined by the number of hours of the leave required (to a maximum of 3 per dose) multiplied by the average hourly wage for the employee. The average hourly wage is set by looking at the amount paid or payable to the employee during the 30 calendar day period preceding the leave (including vacation pay, excluding overtime) and dividing by the hours worked.
what happened to the unpaid leave
The paid vaccination leave does not replace unpaid job-protected leave for workers to obtain the COVID-19 vaccination announced earlier in April 2021. The unpaid leave remains in place to supplement the paid leave in case the time needed is in excess of 3 hours or the worker needs to accompany a family member to get vaccinated.
what proof is permitted
Employers are entitled to request that an employee provide reasonably sufficient proof that the employee is entitled to a paid or unpaid vaccine leave (ex. confirmation of vaccine appointment). However, an employer is not entitled to require that an employee provide a note specifically from a medical practitioner.
Absences due to Vaccination Side Effects
If an employee were to fall ill due to side effects from a vaccination, he or she should first look to any sick leave policies in place with their employer. Second, if required to self-isolate or experiencing COVID-19 symptoms the employee would be entitled to paid sick leave for up to 3 days as discussed above.
Where an employee has already used their paid sick days, in 2020 the BC government introduced an unpaid, job-protected leave related to COVID-19. This unpaid leave allows for job-protected leave so long as the employee is unable to work due to COVID-19, including:
- assisting a dependant begin vaccinated against COVID-19;
- diagnosed with COVID-19;
- in isolation or quarantine;
- the employer directed the employee not to work due to concern about exposure to others;
- need to provide care to an eligible person for a reason related to COVID-19;
- unable to return to BC due to travel restrictions; or
- more susceptible to COVID-19 in the opinion of a medical professional because of an underlying health condition.
The unpaid COVID-19 related leave is retroactive to January 27, 2020 and continues to be an option for BC workers, regardless of the additional measures now introduced by the government.
Can Employers Require their Employees to be Vaccinated
The short answer is “not likely”.
Employers may want all their employees to get vaccinated, however mandatory policies are unlikely to be enforced by the court. Section 13 of the Human Rights Code prohibits BC employers from discriminating against their employees based on a variety of personal characteristics, including: religion, political beliefs, sex, disability etc. If an employee is refusing vaccination based on a protected ground, the employer has a duty to accommodate that employee to the point of undue hardship.
The reasonableness of accommodation depends on the specific facts of a case. The employer must consider the circumstances of the workplace, the position and the employee. While the employer has a duty to accommodate, this must be balanced with an overarching obligation to provide a safe workplace. Unless dealing with vulnerable members of society face-to-face is a fundamental aspect of the employee’s position, it is unlikely an employer will be able to require vaccination as a condition of employment.
There are a few alternatives for an employer:
- implement a policy that strongly recommends all employees receive their vaccine, but not require it;
- ask those who refuse to vaccinate to work from home or make other arrangements to limit the risk of exposure; and/or
- provide incentives to employees in excess of the paid vaccine leave to encourage compliance.
If you have additional questions about your rights as an employee or your obligations as an employer, please contact our office at 604.853.0774 and we can set up a phone consultation to further assist you.