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Implementing paid sick leave in Canada not as simple as it sounds

Prime Minister Justin Trudeau recently revealed that the federal government has entered discussions with the provinces in the hopes of implementing 10 paid sick days for workers across Canada.

While the idea of supporting workers during the COVID-19 pandemic is worthwhile, the implementation and execution of 10 paid sick days for all Canadian employees is not simple.

It requires changing at least 14 different pieces of legislation across the country, co-ordinating with 10 provinces and three territories, and implementing complex workforce management practices.

A closer look at the intricacies of enacting such paid sick leave presents challenges that should be considered.

Provincial consensus required

Firstly, while the Government of Canada can enact federal legislation, the number of employers impacted by this legislation is limited.

The federal act governing medical leaves is the Canada Labour Code. The Code applies to businesses that are federal undertakings, such as banks, telecommunications companies, transportation companies that cross provincial borders and broadcasting companies.

However, the majority of employers are subject to provincial employment standards legislation. As such, implementing 10 days of paid sick leave does not mean simply changing one statute. It means changing the Code, as well as statutes or regulations in each of the 10 provinces and three territories.

While the prime minister and his federal team have entered into discussions with the provinces, consensus will be required among the provinces and territories in order to implement a national program. Whether such proposed amendments are consistent across the provinces and whether they are permanent or temporary remains to be seen.

Complications of unpaid leave

With the exception of Quebec — which allows for two paid days per year of sick leave or family responsibility leave — the majority of the provinces do not currently have legislated paid sick leave.

This is further complicated by the fact that some provinces, such as Ontario and British Columbia, have already instituted unpaid, job-protected leaves as remedial measure during this uncertain time.

These leaves allow for employees to remain off work and retain their right to be reinstated to their jobs (or comparable positions if their jobs are not available upon return to work) upon conclusion of their leaves.

In the event that provincial and territorial lawmakers agree to 10 days of paid sick leave, the costs of such leaves will likely be borne by employers.

Stephanie Lewis is counsel in Dentons’ Litigation and Dispute Resolution group in Ottawa. (Submitted)

Practical considerations for employers

In the event that federal, provincial and territorial lawmakers collectively decide to enact 10 days of paid sick leave, there are a series of considerations governments and employers alike will need to address in order to manage these leaves.

When employees want to avail of paid sick leave, will employers be allowed to require a sick note? The unpaid leaves of absence in Ontario and British Columbia do not allow for such notes.

If medical notes are permitted, will obtaining them be practical? One of the reasons that employees do not currently have to present medical notes for the various unpaid emergency leaves is that requiring such notes would be unduly burdensome on the health-care system.

Too many people need too many leaves for doctors to keep up and still meet the ongoing health-care needs of Canadians.

Will employers need to amend their attendance management policies to keep from running afoul of new legislation? Wording related to any absence from work will need to be carefully assessed to ensure that it does not discourage employees from using their paid sick leave when their health requires it.

While instituting paid sick leave across the country may prove difficult, there are other steps employers can take to manage their workforces in the interim.

They can allow and encourage employees to work remotely. For employees who cannot work remotely, employers can enact thorough return-to-work practices and guidelines to reduce the risk to employees who need to attend the workplace.

These policies ought to reflect workplace health and safety obligations as well as practical considerations in light of individual workplaces.

Stephanie Lewis is counsel in Dentons’ Litigation and Dispute Resolution group in Ottawa with a focus on employment and labour.