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COVID-19-related paid leave - Act Part 6, Section 52.121

Last updated on April 25, 2022

Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information

Summary

This section explains how the amount to be paid to employees is calculated for leave under section 51.121 if special circumstances apply.

Text of Legislation

52.121 (1) In this section;

"applicable period" means the period described in section 52.12 (3);

"eligibility period" means the period that begins on the date this section comes into force and ends on December 31, 2021.

(2) Subject to subsection (3), despite an employee being entitled under section 52.12 (2) only to unpaid leave during the applicable period, an employee who is on leave under section 52.12 (2) (a), (b) or (c) is entitled, on request under this section, to paid leave for a period of that leave of up to 3 days.

(3) An employee is entitled to paid leave under this section of up to 3 days during the eligibility period.

(4) Subject to subsection (5), an employer must pay an employee who takes leave under this section 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.

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

(6) If a collective agreement contains any provisions respecting paid leave that apply to a circumstance described in section 52.12 (2) (a), (b) or (c), and the provisions, when considered together, meet or exceed the requirements, when considered together, of this section, those provisions of the collective agreement replace the requirements of this section in respect of employees covered by the collective agreement.

(7) If a collective agreement contains no provisions respecting paid leave that apply to a circumstance described in section 52.12 (2) (a), (b) or (c), or contains any provisions respecting paid leave that apply to those circumstances that, when considered together, do not meet or exceed the requirements, when considered together, of this section, this section is deemed, while this section is in force, to be incorporated in the collective agreement as part of its terms.

(8) This section is repealed on December 31, 2021.

Policy Interpretation

Subsection (1)

The “applicable period” for an employee, as described in section 52.12 (3), refers to a period during which a circumstance described in section 52.12 (2) applies to the employee.

The “eligibility period” for this section means the period starting on the date this section came into effect, May 20, 2021 and ending on December 31, 2021.

Subsection (2)

Even if an employee is only entitled to unpaid COVID-19 related leave under section 52.12 (2), they can also make a request for up to 3 days of paid leave during their unpaid COVID-19 related leave if:

  • 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 exposure to others

Subsection (3)

Employees are entitled to a total of up to 3 days of paid leave under this section between the date this section came into effect and December 31, 2021. Days do not have to be taken consecutively.

Duration of leave

Any time taken off on any day (even one hour) qualifies as one day for the purposes of this section (see definition of "day" in s.1 of the Act).

Subsection (4)

This subsection explains how to calculate an average day’s pay for the purposes of paid COVID-19 related leave.

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, as noted below:

  • “Amount paid” includes regular wages, commissions, statutory holiday pay, and annual vacation pay, 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 and paid statutory holidays that occur in the 30 calendar days prior to the leave.

Subsection (5)

When an employee takes paid leave under this section, their employer must pay them at least the amount specified in the regulations for each day of paid COVID-19-related leave they take, instead of using the average day’s pay calculation in subsection (4). Currently, no situations are specified in the regulations.

Subsection (6)

If a collective agreement contains any provisions about paid leave that would apply in the circumstances for which COVID-19-related paid leave is available under this section, and the provisions meet or exceed the requirements of this section, those provisions of the collective agreement replace the Act’s requirements for employees covered by the agreement.

Subsection (7)

If a collective agreement does not contain any provisions about paid leave that would apply in the circumstances for which COVID-19-related paid leave is available under this section, or contains such provisions that don’t meet or exceed the requirements of this section, the Act’s requirements are deemed to be incorporated in the collective agreement while this section is in force (until December 31, 2021).

Subsection (8)

This section will be repealed on December 31, 2021.

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

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