The 'average day's pay' is determined by a formula
by Rhonda B. Levy and George Vassos of Littler
On May 11, 2021, British Columbia (BC) announced that it had introduced Bill 13, Employment Standards Amendment Act (No. 2), 2021 (Bill 13) for first reading. Bill 13 received Royal Assent on May 20, 2021. Bill 13 amends the province’s Employment Standards Act (ESA) to add two new leaves:
- a temporary COVID-19-Related Paid Leave; and
- a permanent Paid Personal Illness or Injury Leave.
COVID-19-Related Paid Leave (Temporary)
Commencing May 20, 2021 until December 31, 2021, employees in BC whose employment is governed by the ESA are entitled to up to three days of COVID-19-Related Paid Leave in the following circumstances:
- The employee is diagnosed with COVID-19 and is acting in accordance with:
- instructions or an order of a medical health officer; or
- advice of a medical practitioner, nurse practitioner or registered nurse.
- The employee is in quarantine or self-isolation in accordance with:
- an order of the Provincial Health Officer;
- an order under the Quarantine Act (Canada); or
- guidelines of the BC Centre for Disease Control, or the Public Health Agency of Canada.
- Their employer, due to its concern about the employee’s exposure to others, has directed the employee not to work.
The province’s website indicates that the COVID-19-Related Paid Leave is available to full- and part-time employees who do not already have a paid sick leave benefits plan. Entitlement to this leave is not conditioned on meeting minimum service requirements.
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Calculation of payment
If an employee takes COVID-19-Related Paid Leave, their employer must pay them at least the amount calculated by multiplying the period of the leave and the average day's pay.
The “average day's pay” is determined by this formula: amount paid ÷ days worked.
“Amount paid” is defined as the amount paid/payable to the employee for work done and wages earned within the 30-calendar-day period preceding the leave, including vacation pay paid/payable for any vacation days taken within that period, less any amounts paid/payable for overtime.
“Days worked” is the number of days the employee worked or earned wages within that 30-calendar-day period.
Interaction with collective agreements
In a unionized workplace, if a collective agreement’s provisions regarding paid leave meet or exceed COVID-19-Related Paid Leave, the collective agreement’s provisions apply to the employees it covers.
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The province’s website also indicates that if an employer’s workplace does not have an existing sick leave program, the province will reimburse the employer up to $200 a day. Details about the reimbursement program, which will be administered by WorkSafeBC, will be available in June. The reimbursement program will not be part of the province’s workers’ compensation system; therefore, the employer’s WorkSafeBC premiums or accident fund will not be impacted.
Paid Personal Illness or Injury Leave (Permanent)
Beginning January 1, 2022, after 90 consecutive days of employment, employees in BC who cannot work due to any illness or injury will be permanently entitled to Paid Personal Illness or Injury Leave. The government’s announcement indicates that the number of paid sick days and other supports will be determined following consultations with the business community, labour organizations, Indigenous partners, and other stakeholders.
Bottom Line for Employers
Employers with operations in BC are encouraged to familiarize themselves with COVID-19-Related Paid Leave and provide it to eligible employees commencing on May 20, 2021 until December 31, 2021. Employers are also encouraged to familiarize themselves with Paid Personal Illness or Injury Leave, while remembering that they are not required to begin to provide it to employees until January 1, 2022.
Rhonda B. Levy, Knowledge Management Counsel at Littler is responsible for satisfying the firm's Canadian knowledge management needs, for monitoring legislative, regulatory and caselaw developments, and for drafting and editing publications.
George Vassos, Partner at Littler focuses his practice on advocacy before trial and appellate Courts, and before various labour boards, arbitrators, mediators, adjudicators, and other administrative tribunals, as well as strategic and proactive advice on a wide variety of labour and employment law issues.