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B.C. among few provinces to have specific protection allowing workers COVID-19 vaccination leave

Saskatchewan the only other jurisdiction that guarantees time off for employees to get their jab

B.C. among few provinces to have specific protection allowing workers COVID-19 vaccination leave
Michael Howcroft, partner, Blake, Cassels & Graydon

B.C. is among the few jurisdictions in Canada that have specific protections allowing employees to leave their jobs for a time to receive their Covid-19 vaccine.

Michael Howcroft, employment and labour lawyer Blake Cassels & Graydon LLP, says “what the B.C. government has done is to ensure that everyone has the opportunity to get vaccinated as soon as possible after they are eligible."  On April 19, the province introduced a bill that would, if passed, provide workers with up to three hours of paid leave to get each dose of the COVID-19 vaccine.

This expands the regulatory changes made on April 1, which originally provided the leave as unpaid job-protected leave for workers to take as much time as they needed to receive the vaccine.

If the bill is passed, the effective date will be retroactive to the date of introduction - April 19 - and will make B.C. the second province in the country, after Saskatchewan, that guarantees paid time off for workers to get their vaccine.

Howcroft says that part of the reason for creating the leave provisions is that employees may not have as much choice as to the day or time they can book a vaccination. “You don’t want people to not book a vaccination because it might interfere with their work, and they don’t think it will be allowed,” he says.

The amendment not only protects the employee, it means they can make a booking earlier than otherwise, knowing that there legally will be no repercussions.

In addition to allowing employees to take leave for their vaccinations, the changes allow workers to accompany family members (grandparent or spouse, for example) to their vaccination booking. This would be allowed for as many as there are in the employee’s family who qualify.

As for timing, Howcroft says there is no duration limit, though the paid portion is capped at three hours per visit. “So, in the case of someone who is close to a vaccination location, it might be just a few hours, if the vaccination centre is further away, it could take much longer,” he says. “In either case, the employee is protected.” The province has acknowledged that B.C.s business community, labour groups and workers "have been hit hardest by the impacts of the COVID-19 pandemic.” 

In addition to the vaccination leave amendment, the province has expanded the existing job-protected leave rules for reasons related to COVID-19 to fully align with the federal Canada Recovery Sickness Benefit and the Canada Recovery Caregiving Benefit. Changes had been made to the federal programs in the months since B.C. introduced its COVID-19 related leave provisions.

An employee can now take job-protected leave if they need to care for other family members because of COVID-19, and not only a child or dependent adult as previously defined.

Additional amendments allow employees who have underlying medical conditions, who are undergoing treatment, or who have contracted another illness to qualify for job-protected leave. That is provided a medical professional believes that the employee’s medical circumstances make them more susceptible to COVID-19 and they are receiving federal recovery sickness benefits.

Aside from British Columbia, Saskatchewan has Occupational Health and Safety Regulations guaranteeing at least three hours paid, job-protected leave to be vaccinated. In Alberta, those who need time off work to get a COVID-19 vaccine can use their personal and family responsibility leave introduced by the province last year.

Ministry of Labour and Immigration spokesperson Joseph Dow was quoted in a CBC story that Alberta workers can also do this under rules introduced in March 2020 that allow for five days of unpaid leave annually to deal with health or family issues.

If a worker has already used their five days, Dow said employers and employees are encouraged to work together to find a solution.

“This could include flexible scheduling, such as different shift times or break times, or accessing other benefits in their employment contract or collective agreement,” Dow said.

On the east side of Canada, Stewart McKelvey put out a blog post saying “none of the Atlantic provinces have enacted specific legislation dealing with leave time for employees to be vaccinated, "but it is undoubtedly a topic of conversation for many provincial policymakers."

In some provinces, the post noted employees might use other statutory leaves to take time off to get the vaccine. “For example, employees in Nova Scotia have a statutory entitlement to three unpaid sick days a year that can be used for such things as medical appointments, including a medical appointment to receive the vaccine.”

In Ontario, Premier Doug Ford was recently asked if the province would consider legislation that would give employees three hours paid time off to get the COVID-19 vaccine.  Ford indicated he would favour allowing front-line healthcare workers to take such paid time off but said nothing about workers in other sectors.

Employment contracts may entitle an employee to paid time off to get the vaccine or to paid sick leave. In the absence of any contractual right to time off, Ontario’s Employment Standards Act does not provide for paid leave to get vaccines.

However, Howcroft in B.C. notes that most of his employer clients “are very eager to as many of their employees vaccinated as soon as possible.”

He adds that many employers have, for example, offered gift cards or other rewards to employees who get vaccinated to ensure that employees get vaccinated and get vaccinated as quickly as possible.

“No one wants to have employees off work due to COVID. No one wants an outbreak at their worksite.”

While federal and provincial governments have not yet made vaccines mandatory, professor Colleen Flood at the University of Ottawa has told Canadian Lawyer any vaccination requirement imposed by employers would have to be justified as a necessary measure pursuant to occupational health and safety legislation and balanced against any applicable human rights and privacy legislation, and any guidance from the federal and provincial governments.

But at this relatively early stage of limited vaccine availability, however, most employers will likely strongly encourage employee vaccination by providing education about its benefits, rather than mandating it.

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