Paid Sick Leave in B.C. – The Seasonal Impact

“Is this Smithson guy obsessed with the new ESA paid sick leave rules? Maybe he should find a hobby or take up yoga!” I hear you, and I promise this will be my last bulletin on this topic… for a while, anyway.

Until now, my attention vis-à-vis the new paid sick leave rules has been on the wacky payment rules. You’ve perhaps seen or heard me ranting on this topic, previously, but in brief…

• Employees who hold more than one job get 5 paid sick days and 3 unpaid days per job.
• Employees scheduled to work on a statutory holiday and who call in sick get paid an average day’s pay for both the statutory holiday and the paid sick day.
• Employees calling in sick for a shift get paid an average day’s pay regardless of how long/short the scheduled shift was, meaning that (for instance) an employee missing a scheduled 2-hour shift could be entitled to 8 hours of sick pay.
• Even casual employees are entitled to paid sick leave, as long as they have been scheduled for a shift, and they benefit from the “average day’s pay” rule cited above.
• Employees who leave at any time during a shift are entitled to be paid an average day’s pay on top of the wages they already earned for the balance of the shift, setting up the possibility (for instance) of an employer having to pay an employee 15 hours’ pay for having worked 7 hours and gone home sick with 1 hour to go in the shift.

Paid Sick Days Available After 90 Days

Aside from the weirdness of these rules (and when I say “weirdness” I mean the fact that no employer I’ve ever heard of – not even the most generous – has ever paid employees sick pay in this fashion), an aspect of the new rules which somewhat escaped my attention is the 90 days qualifier. The new paid (and unpaid) sick leave only comes into effect after a person has been employed for 90 days.

The 90 days qualifier corresponds with the typical probation period of 3 months and with the ESA termination rules, stating that people employed for less than 90 days are not entitled to statutory notice or pay in lieu. This all makes sense, and I expect employers will be pleased to at least have that initial period with no paid sick leave obligations.

So, What’s the Issue?

In one of my earlier bulletins on this topic, I mentioned my fear of the impact these new sick pay rules will have on various businesses. It’s now occurring to me that employees, too, may be negatively impacted.

This became apparent to me, in the last week, when advising a client about hiring summer/seasonal staff. As is fairly common at this time of year, I was assisting them with preparation of a limited-term contract for summer hires.

Almost as an afterthought, I mentioned the new ESA paid sick leave rules to the client and, in that moment, it also occurred to me to mention the 90 days qualifier rule. And then it hit me; employers are now very likely to deliberately (and justifiably) ensure that their summer/seasonal hires are employed for less than 90 days.

Why would they do that? Because, as soon as the employee hits the 90-day threshold, he/she is entitled to the full 5 days of paid sick leave. And, if employees are wise to these new paid sick day rules, they are likely to take advantage of that entitlement. Which means that, if your business budgeted to (for instance) hire summer staff for 4 months, it may well be on the hook for an extra week’s pay for each summer hire. That’s a big hit for a lot of businesses.

Is there anything wrong with limiting your summer/seasonal hires to less than 90 days? Absolutely not. You’re totally playing within the rules by doing so. The B.C. government has established the paid sick day rules and there is nothing wrong with stickhandling around the paid sick day entitlement if your circumstances permit that.

But, will some employees (who might otherwise have been offered work for 5 or 6 months) be negatively affected? Absolutely. Perhaps most summer hires are only for a couple of months, but many seasonal hires do exceed that 90 days qualifier. It’s entirely possible – or likely – that many employers will curtail their hiring period so as to avoid being on the hook for a week of paid sick leave.

It’s also entirely possible that, instead of retaining some newly-hired employees past the summer or season, employers will intentionally terminate the employment relationship so as to avoid eclipsing that 90 days qualifier.

So, in the end, the reality may be that the impact of the new ESA paid sick day rules – and the 90 days qualifier – works against both employers and employees. That’s the mark of truly misguided legislation.

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p.s. I did sign up for yoga classes once, years ago. But, the instructor was a dead ringer for the Michael Scott character from “The Office”, both visually and verbally. As a result, I couldn’t take him seriously, and spent much of the classes just trying not to laugh out loud. Picture Michael Scott, saying “Ommmmmm…” and you’ll know what I’m saying.

This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.