The B.C. government has amended the Employment Standards Act (ESA) to require employers to pay their employees for time taken off work to get the COVID-19 vaccine. These amendments raise a number of questions for employers across the province.
How does the paid COVID-19 vaccination leave work in practice?
The new legislation allows employees to take up to three hours of paid leave during work hours to get their COVID-19 vaccine, per each dose. The paid leave is retroactive to April 19, 2021, which means that any employee who took COVID-19 vaccination leave from April 19 onwards is entitled to it.
Employees are expected to take only the time necessary to get the vaccine, up to a maximum of three hours. However, the legislation does not give employers any meaningful tools to ensure employees only take the time strictly necessary.
Employers can request documentation to support an employee’s request for leave, such as information about the location and time of their appointment. This type of documentation could, for example, take the form of an appointment confirmation email. However, as with other COVID-19 leaves, an employer cannot request a medical note from a medical practitioner, nurse practitioner or registered nurse.
How does the paid leave interact with the pre-existing unpaid COVID-19 vaccine leave?
The paid vaccine leave expands on the amendments the B.C. government announced April 1, which provided unpaid job-protected leave for employees to receive the COVID-19 vaccine. There are some distinctions between the unpaid leave and the paid leave. For the unpaid leave, employees are not limited to taking three hours. They can take as much time as is necessary to obtain the vaccine, which could be significantly longer than three hours depending on travel time and other factors.
Another distinction is that employees can use the unpaid leave to take a dependent family member to be vaccinated. However, employees are not entitled to paid leave to do this.
Will B.C. require employers to pay for other types of COVID-19-related leave?
These amendments beg the question of whether the B.C. government will require employers to pay for other types of COVID-related leaves that are currently unpaid under the ESA. Currently, employers must allow employees to take unpaid, job-protected leave related to COVID-19 if the employee is unable work because:
•they are receiving the COVID-19 vaccine;
•they are assisting a dependant being vaccinated against COVID-19;
•they have been diagnosed with COVID-19 and are following the instructions of a medical health officer or the advice of a doctor or nurse;
•they are in isolation or quarantine and are acting in accordance with an order of the provincial health officer, an order made under the Quarantine Act (Canada), guidelines from the BC Centre for Disease Control or guidelines from the Public Health Agency of Canada;
•their employer has directed them not to work due to concern about their exposure to others;
•t hey need to provide care to an eligible person for a reason related to COVID-19, including a school, daycare or similar facility closure;
•they are outside of B.C. and unable to return to work due to travel or border restrictions; and
•they are more susceptible to COVID-19 in the opinion of a medical professional because of an underlying health condition, ongoing treatment or other illness and are receiving Canada recovery sickness benefits for the leave.
On May 11, the B.C. government introduced legislation to provide three days of paid sick leave related to COVID-19. Critics had argued that the federal government’s Canada Recovery Sickness Benefit, which pays $500 a week for anyone sick with COVID-19, was an inadequate measure that does not replace an employee’s full wages.
How does B.C. compare with other provinces and territories?
B.C. is following in the footsteps of Saskatchewan, which in March, became the first Canadian province to require employers to pay employees for up to three hours to attend vaccination appointments. However, one distinction is that the Saskatchewan government has advised that the leave is intended to permit employees to take three hours for one vaccine dose only. B.C.’s proposed amendments, in contrast, would allow employees to take three hours off for each vaccine dose.
To date, no other provinces or territories in Canada have enacted legislation that would require employers to pay employees to take time off work to get vaccinated. In Ontario, provincial government workers can get COVID-19 vaccinations without using unpaid leave or vacation time. However, the Conservative Party of Ontario has voted twice against NDP motions looking to extend the same ability to all private-sector workers. •
The article is for general information purposes only and does not constitute legal advice.
Sarah Blanco is an associate at Roper Greyell, practising in employment and labour law with a focus on injunctions, wrongful dismissal claims and labour grievances in the workplace.
More questions than answers in B.C.’s vaccination leave amendments - Business in Vancouver
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