Illness or Injury Leave - Act Part 6, Section 49.1


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 employment 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 in their employment year, based on their starting date. Illness or injury leave does not carry over from year to year if it is not used during the employment year. Employers should keep a record of the absence.

Employment year

“Employment year” refers to the specific employee’s employment year, based on their start date.

Example: If an employee was hired on May 1, 2021, their employment year ends April 30, 2022. Their next employment year would be from May 1, 2022 to April 30, 2023. In this example, the employee is entitled to 5 paid sick days from January 1, 2022 (when the provision came into force) to April 30, 2022 and 5 paid sick days when they enter a new employment year, from May 1, 2022 to April 30, 2023.

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 year of employment, 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.

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.

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).

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. 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.

As such, 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 1st 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