Vacation pay and paid sick days for BC restaurant staff: 4 percent, 6 percent and five paid days

BC treats vacation and sick leave as two separate entitlements, both set out in the Employment Standards Act. Restaurant teams have high turnover, which makes it easy to forget that staff earn vacation pay from the first week and that paid sick leave begins after three months. The Branch's interpretive guide, referred to below, is the best explanation of how it works.

How much vacation time?

Section 57 requires an employer to give an annual vacation of at least two weeks after 12 consecutive months of employment, and at least three weeks after five consecutive years. You must make sure the employee takes it within 12 months after completing the year of employment that earned it, and you must allow it to be taken in periods of one or more weeks. It is separate from statutory holidays. The Branch notes that the statutory entitlement cannot be waived, and that failing to grant time off is a contravention even if vacation pay was paid. Employers are not required to give vacation time off in an employee's first year.

How much vacation pay?

Under section 58, you must pay:

• after five calendar days of employment, at least 4 percent of the employee's total wages during the year of employment
• after five consecutive years, at least 6 percent

This means a new server earns vacation pay from the first week, even though time off is owed only after 12 months. Vacation pay must be paid at least seven days before the vacation begins, or on the employee's scheduled paydays if agreed in writing by both of you. When employment ends, any vacation pay owed is paid at the time wages are due under section 18.

The 4 percent is on total wages, which the Branch also applies to paid sick pay: vacation pay must be paid on total wages including the paid sick leave required by the Act.

How much sick leave?

Under section 49.1, after 90 consecutive days of employment an employee is entitled in each calendar year to paid leave of up to the prescribed number of days and to unpaid leave of up to three days. The Branch's guide says that means up to five paid days and three unpaid days of job-protected leave per calendar year. It is employee-initiated, days need not be taken consecutively, and employees decide whether they ask for paid or unpaid leave.

Eligible employees who start part way through the calendar year are entitled to the full five paid and three unpaid days. The leave cannot be prorated for staff who start after 1 January, and it does not carry over.

How is paid sick pay worked out?

At least the average day's pay: the amount paid or payable for work done and wages earned in the 30 calendar days before the leave (including vacation pay for vacation days taken in that period, less overtime), divided by the days worked or on which wages were earned in that period.

Can you ask for proof?

If requested by the employer, the employee must as soon as practicable provide reasonably sufficient proof that they are entitled to the leave. The employee need not give advance notice, because illness comes without warning. Ask for something reasonable, not a doctor's note by default.

What about a sick day on a statutory holiday?

Paid sick leave and statutory holiday pay are separate entitlements. If a qualifying employee is scheduled to work on the holiday but takes paid sick leave, they are entitled to an average day's pay for both. See BC statutory holiday pay.

What does the vacation year look like for a new hire?

Take a server who starts on 1 March. Vacation pay starts to accrue after five calendar days, at 4 percent of total wages. The year of employment that earns time off ends on 28 February of the next year, and the employee then has 12 months to take two weeks. Because the pay is due at least seven days before the vacation, unless you agreed in writing to pay it on the scheduled paydays, many restaurants pay it with each cheque and record the agreement in the offer letter. Write that down, because the written agreement is what makes it lawful.

Setting up payroll

1. Record each hire's start date and 90th day.
2. Accrue vacation pay from the fifth day.
3. Track sick days by calendar year, resetting on 1 January.
4. Keep the 30-day average calculation on file.
5. Plan staffing around the summer vacation requests.

Read the scheduling rules in overtime, split shifts and minimum daily pay and the pay floor in BC minimum wage.

More in the Canadian guides for food businesses.