Professor Kevin Banks

Professor Kevin Banks, labour and employment law expert, shares his analysis of the latest pandemic-related topic to dominate news headlines, set out below. 

The third wave of the COVID pandemic is surging in Ontario. There is growing political and scientific support for giving employees access to employer-paid sick leave in response – to help cut off coronavirus transmission in workplaces, and to protect essential workers and their families from preventable suffering and death. Calls for rights to such leave have come from municipal mayors, heads of public health authorities, political parties, scientific advisors to the province, and Canada’s Chief Medical Officer of Health. 

As of this writing, the Government of Ontario has not put a plan in place. And Ontario is not alone in not providing paid sick leave. Currently only three Canadian jurisdictions mandate such leave, and the amount of leave that they require is quite modest. 

In this short commentary I will briefly survey pros and cons of employer-paid sick leave as a response to the pandemic, and outline a possible way forward.

To understand the potential public health benefits of paid sick leave, there are four things to keep in mind. 

First, as Dr. Camille Lemieux of the University Health Network’s COVID-19 assessment centre put it, “The bulk of cases now that seem to be driving the pandemic are happening in workplaces where essential workers are unable to physically distance from one another.” A number of emergency room and intensive care physicians and nurses have publicly said the same thing. Public health data also show that workplaces are now the leading known source of COVID outbreaks. 

Second, many workers are very reluctant to take unpaid days off when they are feeling sick or may been exposed to the virus, despite risks that they may be contagious and may get sick or sicker themselves. This is because they live paycheque to paycheque and worry about meeting their own basic housing and other needs, or those of their families. Some also face pressures from their employers or workplace culture not to take time off, exacerbating these economic pressures. Not surprisingly, studies have shown that workers without paid sick leave are less likely to take time off when they are sick, and more likely to defer medical care. It is now well-known that people with COVID-19 may be asymptomatic or only mildly symptomatic, and therefore physically able to go to work, and yet may still be very infectious. 

Third, economically vulnerable workers are also more likely to live in crowded or multiple occupant housing. Studies have shown that this increases transmission of the virus to family members, roommates, and neighbours.

Finally, many workers don’t have access to paid sick leave during the first days of illness, especially low-paid workers, many of whom work in essential facilities. Estimates of the percentage of Canadian workers with access to paid sick leave range between 42 and 52 per cent. For workers earning below $25,000 per year, that number drops to 30 per cent, and for temporary workers, it is about 10 per cent. 

So unless the government intervenes, those who from a public health standpoint most need access to paid sick leave are least likely to get it. With this in mind, we can understand why Dr. Peter Juni, who is part of Ontario’s COVID-19 Science Table recently said publicly that “if the province wants to get this under control, and tries to do that without efficient paid sick leave, it won't work. It’s a simple as that.”

The next question is of course who should pay – the government, or employers?  This is actually a more complex problem. There are four kinds of argument here. 

The first has to do with what is the right or decent thing for employers to do. Some employers and many worker advocates and unions say that paid sick leave is part of a basic package of decent working conditions. This argument, while having considerable public appeal, had yet to carry the day in many Canadian legislatures before the pandemic hit. And even if one accepts its premises, how far should such obligations go? In most OECD countries with employer-paid sick leave, its duration ranges between five and 15 days. After that, state or private insurance programs may be available. 

The second has to do with who benefits. Some researchers and employers argue that modest employer paid sick leave plans can more than pay for themselves in terms of reduced absenteeism, improved employee retention, and even in increased productivity. They argue that experience with paid sick leave in U.S. cities that have required it shows that few employees abuse it, and take-up rates are generally below leave availability. But not all employers are likely to be net winners. Those paying close to minimum wages may not be able to offset cost increases with productivity gains or reduced growth in pay or other benefits. Those with high turnover and routine work may see less in the way of gains from increased productivity or loyalty. And in the end, many of the benefits of reduced transmission accrue to the public and the state, in the form of lower health care costs, the well-being of the people, and the benefits of an earlier re-opening of the economy.

The third has to do with ability to pay. The pandemic has hit some businesses hard. Many smaller businesses are struggling to survive. For this reason, the Canadian Federation of Independent Business takes the position that government and not employers should pay.

Finally, there is the question of timeliness and certainty: who is able to pay quickly and certainly enough to assure workers that they and their families will be alright if they stay home?  This issue is actually key to current debates. 

The federal government has put in place the Canada Recovery Sickness Benefit (CRSB), which offers workers $500 ($450 after taxes) for a one-week period, with a maximum of four weeks in total. Critics have pointed to its gaps. A worker must be off for at least 50 per cent of their normal workweek to apply. It does not cover new workers, because there is a minimum earnings threshold. Unless you have an underlying health condition, it only applies if you are already sick with COVID-19, or if your employer, medical or nurse practitioner, public health authority, or other person in authority advises you to self-isolate. And its replacement income is below minimum wage levels in many jurisdictions. 

Critics have also pointed to time lags and uncertainties of the CRSB. There is an application process with criteria that may be unclear to workers. Each week of benefits requires a new application. Delays in payments can range from three to 12 business days depending on the method of payment, according to the federal government, while others have said that the wait can be up to four weeks. 

The key point is that these gaps and uncertainties may undermine the program’s effectiveness at getting workers to decide, often under time pressures, to stay home when they should. As Laird Cronk, president of the B.C. Federation of Labour put it: "What we're trying to address here is a worker who wakes up in the morning and they have symptoms.” By contrast, with employer-paid sick leave the money will be there on the next paycheque. Some of the problems with the CRSB could be fixed. But it is not likely that a government-administered program could provide the certainty and immediacy of payment that may be needed to cut off workplace contagion under pandemic conditions. 

So, at least during the pandemic, requiring employers to pay sick leave benefits may be the best approach. But it may also make sense for governments to at least partially reimburse employers who are in financial difficulty, as proposed by the B.C. Federation of Labour. Most OECD countries already required employer-paid sick leave before the pandemic. But most have also taken measures to temporarily lower the financial burden on employers to provide sick pay in case of sickness due to COVID 19. 

Finally, it is important to keep in mind the limitations of employer-paid sick leave benefits. Covering a period of prolonged illness, or multiple periods of isolation for workers who are repeatedly exposed to the virus will still require public or private insurance systems to provide or extend longer term sickness benefits. 

Professor Kevin Banks is the Director of the Centre for Law in the Contemporary Workplace at Queen’s, the Editor-in-Chief of the Canadian Labour and Employment Law Journal, and a co-ordinating editor of Labour and Employment Law, Cases, Materials and Commentary.