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Illness or Injury Leave - Act Part 6, Section 49.1

Last updated on April 1, 2022

Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information

Summary

This section explains under what circumstances an employee qualifies for personal illness or injury leave.

Text of Legislation

49.1 (1) After 90 consecutive days of employment with an employer, an employee, for personal illness or injury, is entitled in each calendar year, to

(a) paid leave up to the number of days prescribed, and

(b) unpaid leave for up to 3 days.

(2) If requested by the employer, the employee must, as soon as practicable, provide to the employer reasonably sufficient proof that the employee is entitled to leave under this section.

(3) Subject to subsection (4), an employer must pay an employee who takes leave under subsection (1) (a) an amount in money equal to at least the amount calculated by multiplying the period of the leave and the average day's pay, where the average day's pay is determined by the formula

amount paid ÷ days worked

where

amount paid is the amount paid or payable to the employee for work that is done during and wages that are earned within the 30 calendar day period preceding the leave, including vacation pay that is paid or payable for any days of vacation taken within that period, less any amounts paid or payable for overtime, and

days worked is the number of days the employee worked or earned wages within that 30 calendar day period.

(4) An employer must pay an employee in a prescribed circumstance who takes leave under subsection (1) (a) an amount in money equal to at least the amount calculated in accordance with the regulations.

Policy Interpretation

Illness or injury leave is an employee-initiated leave. This leave is a statutory entitlement, not something that may or may not be granted at the discretion of the employer. This paid leave is sometimes referred to as ‘sick leave’ with ‘sick pay’.

After 90 days of employment, employees can take up to 5 paid days and 3 unpaid days of job-protected leave per calendar year. This leave is employee-initiated and employees decide whether they are requesting paid or unpaid leave. To ensure effective communication between employees and employers, employees are encouraged to specify whether they prefer to take unpaid or paid leave. Employers are encouraged to clarify the type of leave if there is any doubt. The Act is benefits conferring legislation and requires an employer to ensure all wages are paid within 8 days of each pay period. Employers may find it advisable if unsure of their employee’s decision, to record and pay the time off as paid sick leave. Employers should ensure their payroll and employment records comply with the Act. Records should include the leave taken, if the leave was paid or not and the amount of wages paid.

Calendar year

Calendar year means a period of 12 consecutive months beginning on January 1. Eligible employees who start employment part way through the calendar year are entitled to the full 5 paid days and 3 unpaid days despite not being employed for the full calendar year. Illness or injury leave cannot be prorated for employees who start after January 1.

Illness or injury leave does not carry over from year to year if it is not used.

Illness or Injury Leave on a statutory holiday

Paid sick leave and statutory holiday pay are separate entitlements. If an employee qualifies for statutory holiday pay and is scheduled to work on the statutory holiday but takes paid sick leave, they would be entitled to an average day’s pay for both the statutory holiday and the paid sick leave.

Illness or Injury Leave and vacation pay

Vacation pay must be paid on an employee’s total wages including the paid sick leave required by this Act. Paid sick leave is money required to be paid under this Act. (See definition of “wages” in section 1 of the Act)

Subsection (1)

This section contemplates that the need for a leave of this nature can arise suddenly and without warning, so the employee is not required to give the employer a certain amount of advance notice. The employee should advise the employer as soon as they can that they are ill or injured and unable to work.

Employees become eligible for this leave when they have been employed for 90 consecutive days. In each calendar year, eligible employees are entitled to up to 5 days of paid leave and 3 days of unpaid leave. Days do not have to be taken consecutively.

Paid sick leave entitlements for 2022

If an eligible employee has not yet taken any paid sick days they are entitled to 5 paid days from March 31, 2022 until December 31, 2022.

If an eligible employee has taken part of their 5 day entitlement, those days are counted against and reduce the employee’s 5 day entitlement up to December 31, 2022.

Example: An employee who took 2 paid sick days in February 2022 will be entitled to the remaining 3 paid days from March 31, 2022 to December 31, 2022.

If an eligible employee has taken 5 paid sick days, those days are counted against their calendar year entitlement, leaving no further paid sick days remaining until 2023.

If an eligible employee has taken 7 paid sick days, they are not entitled to any further paid sick days until 2023. The employer cannot recoup or deduct the 2 additional paid days or wages from either the employee’s 2023 paid sick day entitlement or from their wages. Each calendar year the full 5 paid day entitlement re-sets in full. The employee in this case was entitled to and granted 7 paid sick days based on the legislation in force at the time.

Section 21(1) of the Act prohibits an employer from directly or indirectly, withholding, deducting or requiring all or part of an employee’s wages for any purpose, except as permitted or required under the Act or by law. Employees who were legally entitled to 7 paid sick days under the Act between January 1, 2022 and March 31, 2022, cannot be required to repay these wages to their employer. The Director’s interpretation is that these wages do not amount to an overpayment of wages, as they were due and payable in accordance with section 49.1 at the relevant time. These wages are not accidental or an overpayment of wages and parties cannot rely on section 22(4) of the Act to enter into a written assignment to pay wages back to the employer.

Paid sick leave entitlements for 2023

All eligible employees are entitled to 5 paid sick days from January 1, 2023 to December 31, 2023

Example 1: An employee who started employment on February 1, 2022 is entitled to 5 paid sick days from May 2, 2022 to December 31, 2022 and 5 paid sick days from January 1, 2023 to December 31, 2023

Example 2: An employee who started employment on June 1, 2022 is entitled to 5 paid sick days from August 30, 2022 to December 31, 2022 and 5 paid sick days from January 1, 2023 to December 31, 2023

Example 3: An employee who started employment on December 1, 2022 is entitled to take 5 paid sick days after 90 days of employment from March 1, 2023 to December 31, 2023.

Partial sick days

The Act does not allow for “partial” sick days. The Act stipulates employees are entitled to “five paid days” to be paid based on an "average day’s pay”. Any time taken off on any day (even one hour) qualifies as one day for purposes of this section. (See definition of “day” in section 1 of the Act) There are no provisions for prorating or subdividing the entitlement.

The Act does not stipulate an arrangement in which the employee can take partial sick days and be paid in accordance with the average day’s pay formula below. Employers must ensure payment of wages complies with the Act.

After 90 days of employment, full time, part time and casual employees are entitled to 5 paid sick days. The amount of wages paid to full time, part time or casual employees will vary based on the average day’s pay formula set out in section 49.1(3). Eligibility is based on employment status and crossing the 90 day employment threshold.

Example: An eligible employee works 4 hours every Monday, 8 hours on Tuesday and Thursdays, 3 hours on Friday and 6 hours on Saturday. On Saturday, the employee arrives to work and works 3 hours before they need to go home sick. The employee asks to take a paid sick day for Saturday. The employee is entitled to be paid their regular wages for the 3 hours worked and a paid sick day based on an average day’s pay (as set out in section 49.1(3)). The employer would not be in compliance with the Act if they only paid the employee 3 hours for work performed. The employer would also not be in compliance with the Act if they only paid the employee 3 hours for work performed and 3 hours as sick pay. Regular wages and an average day’s pay are two distinct entitlements and the amount of wages owed under the Act for a “paid sick day” is not based on the actual scheduled shift or hours for which the employee is sick. 

More than one employer

If an employee works 2 part time jobs at the same time, they get 5 paid sick days per job. If they work multiple part time jobs throughout the year, they get 5 paid sick days per job (after 90 days of employment with each job). This is no different from eligible part-time or casual employees being entitled to an average day’s pay for statutory holidays or to vacation pay from each employer they are employed with. Employment entitlements and obligations are specific to each employment relationship.

Example: An employee has been employed for longer then 90 consecutive days by Top Choices Restaurant, ABC Hotel and Coffee Time Café. The employee has worked shifts for all three employers in the last 30 days. On January 8th, the employee was scheduled to work 8 hours for Top Choices Restaurant and afterwards, 4 hours at Coffee Time Café. The employee called in sick to both employers for both of January 8 shifts.

The employee is entitled to an average day’s pay (based on the formula set out in section 49.1) from both Top Choices Restaurant and Coffee Time Café. The amount of wages each employer owes is not based on the hours of work the employee was scheduled for on January 8. Rather, each employer owes an average day’s pay based on the wages earned or paid to the employee in the previous 30 days and the number of days worked. ABC Hotel does not owe the employee any wages, because the employee wasn’t scheduled to work and didn’t need to call in sick with them. The employee has now used up one paid sick day from Top Choices Restaurant and one paid sick day from Coffee Time Café. The employee is still entitled to 5 paid sick days from ABC Hotel.

Subsection (2)

This section sets out how an employer may exercise their judgement to request reasonably sufficient proof from their absent employee to support the leave entitlement.

Reason for leave

If requested, the employee must, “as soon as practicable”, provide their employer with reasonably sufficient proof to show that an illness or injury was the basis for their absence. The requirement to provide “reasonably sufficient proof” and to do so “as soon as practicable” anticipates that both the proof and the timelines for providing it be reasonable in the circumstances.

Employers should allow a reasonable time frame for an employee to provide proof. For example, an employee might have limited ability to gather proof if they need the leave without warning. However, if the employee has electronic evidence that can be sent from home, it may be reasonable for the employee to send it while on leave. Employers should also consider the employee’s access to medical/health professionals or institutions, including any barriers to accessing medical/health professionals in short timeframes to obtain formal documentation to support the leave. Employers should also be aware of any privacy limitations when seeking medical information from employees.

Reasonably sufficient proof

“Reasonably sufficient proof” includes any adequate information that establishes or helps to establish that the employee's absence is due to illness or injury. Illness or injury may be broadly defined and includes both physical and mental illness.

Not all health or medical related conditions, treatments, procedures or appointments fall within the definition of “personal injury or illness”. The reason for leave must be sufficiently connected to "personal injury or illness" to entitle an employee to a paid sick day or to require an employer to pay wages to their employee.

The facts must reasonably show the employee has an injury or illness that prevent or make it unadvisable for the employee to report to work for their scheduled shift. If the absence relates to a treatment, procedure or appointment, there must be a sufficient connection between the treatment, procedure or appointment and the employee’s illness or injury such as to trigger the leave entitlement.

Parties seeking to understand the scope of the entitlement may find it helpful to assess, in any given scenario, whether it appears more likely than not that if required, the employee would be able to provide “reasonably sufficient proof” of the illness or injury to support the leave. In the case of a routine health appointment for an otherwise non-ill/non-injured employee, it may be more challenging to obtain reasonably sufficient proof to support their inability or unfitness to attend work. Conversely, it may not be as challenging for an employee who is diagnosed with a medical condition and who is undergoing a non-elective treatment to obtain “reasonably sufficient proof” that they are or will be too ill to attend work for their scheduled shift.

The Act provides a direct mechanism to address any ambiguity or disputes on the entitlement to personal injury and illness leave in section 49.1(2). If the employee is able, upon the employer’s request, to provide “reasonably sufficient proof” to support the entitlement, that should guide the parties actions around this entitlement.

Determining what is “reasonably sufficient proof” calls for flexibility and a balancing of the rights and the obligations of the employee and the employer. The employee has a statutory entitlement to the sick leave, which is a job-protected leave under Part 6 of the Act. The employer has the right to manage its business and the workforce.

Proof of entitlement to sick leave may take many forms. For example, if it is reasonable in the circumstances, it could take the form of a receipt from a drugstore or pharmacy, a medical “bracelet” from a hospital, or a note from a doctor, nurse practitioner, psychologist, counsellor, or therapist. The proof requested should be proportionate to the leave and the surrounding circumstances.

What will be reasonable and sufficient in the circumstances will depend on all of the facts of the situation, which may include:

  • The length of the absence. For example, it may not be reasonable or necessary, depending on all the circumstances, for an employer to require an employee who only missed one day of work due to a migraine, absent any other extenuating circumstances, to provide a doctor’s note. Reasonably sufficient proof may amount to receiving enough credible verbal information from the employee to support the nature of the absence.
  • Whether there is an established pattern of absences. For example, if an employee alleges they are ill and takes sick leave only on each Friday before a statutory holiday weekend, it may be reasonable for the employer to require more stringent medical or other proof of illness even though the leave is only one day at a time.
  • Whether proof is available. For example, if an employer does not request a doctor’s note from their ill employee until that same employee has returned to work and is no longer ill, it may not be feasible for them to obtain sufficient proof to establish their previous illness.
  • What types of proof are available and the cost associated with obtaining such proof. For example, it may not be reasonable, depending on all the circumstances, for an employer to require an employee who earns minimum wage to obtain a doctor’s note to support every absence if the doctor charges the employee $50 to obtain the note.

Subsection (3)

This subsection explains how to calculate an average day's pay for the purposes of paid leave.

Employees are entitled to an "average day’s pay”

The number of hours the employee is scheduled to work on the actual sick day are not relevant to the amount of wages owed.

Example: An employee who regularly works Monday to Friday, 8 hours per day, 40 hours per week is scheduled to work 2 hours on Saturday. The employee is sick on Saturday and entitled to “an average day’s pay”. In this example, the average day’s pay would equal 8 hours at regular wage, not two. Even though the employee was only scheduled for 2 hours, they are entitled to the average day’s pay.

Calculating an “average day’s pay”

An average day’s pay is calculated by dividing the amount paid or payable in the 30 calendar days before the leave by the number of days worked during that 30-day period.

  • “Amount paid” includes regular wages, commissions, statutory holiday pay, annual vacation pay, and sick pay required by this Act, but does not include overtime pay. Payments from benefit plans are not considered wages for the purposes of this section.
  • “Days worked” includes, for the purposes of this section, any days when wages were earned. This would include days of paid annual vacation, paid statutory holidays, or other paid sick days required by this Act that occur in the 30 calendar days prior to the sick day.

Example 1: An employee in the food service industry worked 20 out of the 30 days before they took sick leave. Each week, they worked 4 hours per day on Tuesday, Wednesday and Thursday, and 10 hours per day on Friday and Saturday. Their regular wage is $17 per hour.

Overtime is not included in the calculation for an average day’s pay. There are 12 hours total for Tuesday, Wednesday, and Thursday (4 hours x 3 days) and 16 hours for Friday and Saturday (20 hours - 4 hours overtime). The total is 28 hours per week x 4 weeks. There are 112 hours for the 20 days in total.

  • 112 hours x $17 per hour = $1904
  • $1904 divided by 20 days = $95.20

The sick pay entitlement in this example would be $95.20 for one sick day.

Example 2: In the last 30 days, a salesperson worked 25 out of the 30 days before the sick leave. 10 hours per day, 6 days per week. The employee earns $6000 per month plus commission. In the last 30 days, the employee was paid their salary and $10,000 in commission. The employee works Monday-Saturday (60 hours per week) and was sick on Monday.

In this example, the regular wage is determined by the following calculations:

  • $6000 per month x 12 months = $72,000 (annual salary)
  • $72,000 divided by 52 weeks = $1384.62 (weekly salary)
  • $1384.62 divided by 60 hours per week = $23.08 (regular wage)

Since this employee is a salesperson and not entitled to overtime, we would calculate the regular wage at 10 hours per day.

  • $23.08 x 10 hours per day x 25 days = $5770

Commissions are money payable for work and need to be included in the calculation for an average day’s pay. $10,000 in commissions is added since it was paid within the 30 days before the sick leave.

  • $5770 + $10,000 = $15,770
  • $15,770 divided by 25 = $630.80

The sick pay entitlement in this example would be $630.80 for one sick day.

Example 3: A casual employee who has been employed for many years is scheduled to work two days in March. They do not earn any wages or work any shifts in January or February. On March 1 they work one 8 hour shift. They call in sick for their 3 hour shift on March 2nd. They are entitled to 8 hours of wages (“an average day’s pay” based on the section 49.1(3) calculation) for the March 2nd sick day.

Subsection (4)

When an employee takes paid leave under this section, their employer must pay them at least an average day's pay for each day of paid leave they take.

Terms and conditions of employment protected

Section 54 provides that an employer cannot terminate an employee or change a condition of employment without the employee's written consent as a result of a leave under this Part. See also s.56 for an explanation of the effects of leave under this Part on employment and benefit payments. If the employer's business operations have been suspended or discontinued at the time the employee's leave ends, the employer must comply with s.54(2) when operations resume.

In the event of a contravention under this Part of the Act, the director may order a remedy in a determination under s.79(2). The determination will include an escalating monetary penalty, subject to s.98.

Employees covered by a collective agreement

Where there is a collective agreement, disputes respecting the application, interpretation, or operation of Part 6 must be resolved through the grievance procedure, not through the enforcement provisions of the Act.

Related Information

Related sections of the Act or Regulation

ESA

ESR