The recent introduction of five days of mandatory paid sick leave in B.C. marks the high water mark of a tidal wave of legislation increasing B.C. employers’ obligations to provide job-protected statutory leaves.
While popular with employees, these expanded obligations effectively force an employer to incur significant costs and lost productivity to accommodate events in employees’ personal lives. Statutory leave rights need to strike a fair balance between the needs of employees and employers. Where the leave is paid, the issue is whether the cost should be borne by the employer or shared by all workers and employers through a government-paid benefit, as is the case for maternity and parental leave benefits.
In a series of amendments to the Employment Standards Act (ESA) over the past few years, the government has:
1. Multiplied the number of grounds on which employees can take statutory leaves: the ESA now lists 14 separate grounds of leave, each with its own set of rules.
2. Substantially increased the length of time employees can be off work on statutory leaves: birth mothers can now take up to 18 months off work, up from 12 months. Employees caring for critically ill family members can take up to 36 weeks to care for minors. Those who lose a child can take up to two years.
3. Required some leaves to be employer-paid: employers must now provide five paid days annually for sickness and five for absences due to sexual or domestic violence.
There is no question that employees need to have the legal right to take job-protected leave in some situations, such as having children, bereavement and sickness. However, the proliferation and extension of statutory leaves overlooks the reality that statutory leaves, particularly the longer ones, have significant impacts on employers and co-workers, including:
A. Because the employer is required to reinstate the employee returning from leave, employers are faced with hard choices: manage around an absence or hire a replacement. The former solution necessarily imposes significant additional workload on co-workers and managers. Finding a replacement is also often difficult if not impossible, as well as costly. Few employees are interested in short-term leave replacement contracts, particularly in the current labour market. For many roles, it is not practical to train a replacement to the point they become productive during a leave.
B. Employees on leave must continue to receive benefit coverages, a cost incurred with no work provided in return.
C. Under the current ESA, vacation time off and, in some cases, vacation pay must continue to accrue to employees who are off work on statutory leaves. This does not make sense.
D. Most statutory leaves are available to all types of employees, with little or no service requirement. Does it make sense that a part-time employee working two days a week gets the same number of paid sick days as a full-time employee?
E. Employees taking longer leaves must transition their work to others then need time to reintegrate to full productivity on their return. This results in reduced productivity of the leave-taker at either end of the leave.
F. Mandating paid leaves effectively imposes significant new costs on employers. Under the new sick leave amendments, most employers expect all employees to take all five days. This is a major wage cost increase to the approximately 60 per cent of employers who did not offer paid sick leave prior to the amendments. Forcing employers to pay for leave time is a departure from the previous approach under which compensation to employees on leave was “socialized” by being paid through the employment insurance (EI) system financed by employers and employees collectively.
These impacts will continue to motivate employers to either move their labour force elsewhere or convert employees to contractors, who have no right to statutory leaves. To avoid this, it is time for a rebalancing of leave rights. Some changes that would help strike a fairer balance include:
•Reducing the number of leaves to the most common ones and limiting them to situations beyond the control of the employee;
•Reducing the duration of leaves with a guarantee of reinstatement to more reasonable durations, with 12 months as a maximum. This could be supplemented by a “first right of return” to a job opening for employees taking more than 12 months rather than an iron-clad right of reinstatement;
•Shifting benefit costs on longer leaves (e.g. exceeding 12 months) to the employee;
•Amending the ESA to clarify that no vacation rights accrue on leaves exceeding a few weeks;
•Pro-rating leave rights for part-time employees where appropriate (e.g. sick leave) and making longer leaves conditional on a minimum period of prior employment; and
•Requiring the EI or WorkSafe system to provide all compensation for employees on leaves, with the cost shared amongst all employers and employees. This could include introducing higher levels of benefits for some leaves such as sick leave.
Together these reforms would help rebalance the current leave regime to better accommodate the needs of employers while still protecting employees’ rights to reasonable amounts of time off work. •
J. Geoffrey Howard ([email protected]) is a senior employment lawyer and principal of Howard Employment Law.
