This section explains under what circumstances an employee qualifies for personal illness or injury
Announced 24 November 2021
Comes into effect 1 January 2022
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 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.
Illness or injury leave is an employee-initiated leave. After 90 days of employment, employees can take up to 5 days of paid leave and 3 days of unpaid leave in their employment year, based on their starting date. This leave is a statutory entitlement, not something that may or may not be granted at the discretion of the employer.
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.
Employees become eligible for this leave when they have been employed for 90 consecutive days. In each year of employment, eligible employees are entitled up to 5 days of paid leave and 3 days of unpaid leave. Days do not have to be taken consecutively.
Any time taken off on any day (even one hour) qualifies as one day for purposes of this section. (See definition of “day” in s.1 of the Act)
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.
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. The employee must provide enough information to reasonably satisfy the employer that the employee is entitled to the leave.
This subsection explains how to calculate an average day’s pay for the purposes of paid 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 during that 30-day period.
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.
Reason for leave
An employee is encouraged to give notice of their need for leave as soon as they are reasonably able to, to allow the employer to accommodate their absence. Employers are entitled to reasonable proof, after the event, that the request for a leave was valid.
Proof of entitlement
An employer may ask for reasonable proof that an employee is entitled to illness and injury leave.
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.
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.