New Serious Personal Injury or Illness Leave
Update by James Hsu, Head of Employer Services
We confirm a new 27 week unpaid sick leave, which the government has named “Serious Personal Injury or Illness Leave”, is now in effect. This new leave (which we will refer to as Serious Sick Leave) is separate from the existing injury or illness leave aka “Sick Leave”.
Serious Sick Leave
Workers with a serious illness or injury can now take as many as 27 weeks of unpaid, job-protected leave within a 12-month period to undergo medical treatment and focus on their recovery, subject to the following rules:
Medical Certificate. An employee taking this leave must give their employer a certificate issued by a doctor, nurse practitioner or other designed health professional (as set out in the ESA) stating the following: (a) they can't work for medical reasons, (b) the date the leave begins, and (c) the date they expect to return to work.
Scheduling Requirements. Employees must take this leave in units of one or more weeks. A week begins on Sunday and ends on the following Saturday. If an employee begins a leave in the middle of one week and ends it in the middle of the next week, it counts as 2 full weeks of leave. The 52-week period begins on the Sunday of the week when the certificate is issued, or the first leave begins (whichever comes first).
Subsequent Leaves. Employees can take subsequent leaves within the same 52-week period if they haven't already used their full 27 weeks, by either: (a) giving their employer a new certificate, or (b) if they have returned from the original leave early, taking more weeks of leave before the date they originally expected to return to work.
Employees are entitled to this leave from the date they start work. Like with all protected leaves under the ESA, there is an obligation to reinstate an employee returning from this leave to their position (or a comparable one).
Interaction with Injury or Illness Leave (Sick Leave)
Serious Sick Leave is separate and in addition to the existing 8 days of Sick Leave. As a reminder, employees who have worked for 90 consecutive days for an employer are entitled up to 5 paid, and 3 unpaid days of Sick Leave per calendar year. The new sick note rules restricting when sick notes can be requested apply to these 8 days of paid and unpaid Sick Leave.
Interaction with Human Rights Law
Under the British Columbia Human Rights Code, physical and mental disability are protected characteristics. Accordingly, employers:
Must not discriminate against an employee in connection with these characteristics, and
Have a duty to accommodate employees when their physical and/or mental disability prevents them from being able to perform their job duties.
While not all injuries or illnesses meet the definition of physical and/or mental disability, it is likely a condition causing an employee to take a Serious Sick Leave may qualify as a physical or mental disability under the Human Rights Code.
Human rights law places additional requirements on both employers and employees. This may create confusion when navigating the requirements of the ESA and Human Rights Code For example:
The documentation required for an employee to take a Serious Sick Leave under the ESA may not provide sufficient information for the accommodation process.
Within an accommodation process, an employee may still take an extended unpaid leave in addition to Sick Leave and Serious Sick Leave. In that case, the Employee will not be constrained by the parameters of the ESA protected leave e.g., the requirement in a Serious Sick Leave to take time off one week at a time.
Additional Considerations:
Considering this recent development, organizations should review and consider their:
Sick Leave Policies, including but not limited to:
What information is being requested from employees and in what manner.
The return to work process following a leave.
Interaction with other policies such as paid time off and paid personal days.
Benefit Policies, especially an employee’s entitlement to extended benefits once on leave.
For ESA job protected leaves: an employer must continue paying for an employee’s benefits if they pay the full cost of the premiums or the plan cost is shared between the employer and employee, and the employee continues to pay their share of the contributions.
For unpaid leaves (not ESA), it can be permissible (if structured properly) for an employer to discontinue paying for an employee’s benefits while they are on an unpaid leave provided this is part of an enforceable employer policy.
It is illegal to terminate a specific employee’s benefits after and because the employee has been on an extended medical leave because the employer wants to stop paying the premiums for that employee.
The cost/benefit of using other supplementary disability insurance e.g., short term and long term, and related policies and practice.
Staffing and Coverage (and relevant employment documents) e.g., medical questionnaires and short-term coverage contracts to backfill employees who are on longer leaves.
If you have any questions regarding updating your policies and documents, book a meeting with James Hsu, our Head of Employer Services.
