On August 22, 2019, the headlines read “Trudeau springs a nasty surprise on many Canadian Employers” (Financial Post, August 22, 2019). Bill C-63 and C-86 received Royal Assent December 14, 2017 and December 13, 2018 respectively. While the changes may come as a surprise to some, the amendments to the Canada Labour Code (the “Code”), several of which come into force September 1 2019, have been in draft and contemplated for some time and will impact those workplaces that perform federal works or undertakings.
The Code establishes minimum standards for employee rights and responsibilities in federally regulated workplaces similar to the Ontario provincial counterpart legislation, the Employment Standards Act, 2000. The Code applies to employers in the following areas:
- Crown Corporations;
- Chartered Banks;
- Marine shipping, ferry and port services;
- Air transportation, including airports, aerodromes and airlines;
- Post Offices;
- Railway and road transportation that involves crossing provincial or international borders (trucking, bridges, some bus operations, railways);
- Canals, pipelines, tunnels and bridges (crossing provincial borders);
- Telephone, telegraph and cable systems;
- Radio and television broadcasting;
- Grain elevators, feed and seed mills;
- Uranium mining and processing;
- Businesses dealing with the protection of fisheries as a natural resources;
- Many First Nations activities;
- Most federal Crown corporations;
- Private business necessary to the operation of a federal act.
The amendments to the Code are intended to modernize the legislation similar to significant legislative changes that we saw in Ontario to the Employment Standards Act, 2000 over the last year, or more. The amendments to the Code, effective September 1, 2019 are summarized as follows:
Vacation and Holiday Pay Provisions
Vacation
The Code provides for a graduated vacation entitlement based on an employee’s years of service. Employees will now be entitled to vacation time and vacation pay as follows:
1 year of continuous service: 2 weeks’ vacation and 4% vacation pay
5 years of continuous service: 3 weeks’ vacation and 6% vacation pay
10 years of continuous service: 4 weeks’ vacation and 8% vacation pay
Employees may now interrupt or postpone their vacation in order to take another leave of absence contemplated by the Code.
Holiday Pay
Historically, employees were required to work thirty (30) days before becoming eligible for holiday pay. The amendments remove the thirty (30) day eligibility requirement and now, employees will be eligible to receive holiday pay for any statutory holiday that occurs within the first thirty (30) days of employment.
Leaves of Absence
Personal Leave
All federally regulated employers regardless of size will be required to provide employees with five (5) days of personal leave per year, the first three (3) days must be paid days after the employee completes three (3) continuous months of service. The leave may be taken for: treating personal illness or injury; carrying out responsibilities related to the health or care of any of their family members; carrying out responsibilities related to the education of any of their family members who are under eighteen (18) years of age; addressing any urgent matter concerning themselves or their family members; attending their citizenship ceremony under the Citizenship Act; any other reason prescribed by regulation.
Medical Leave
Medical Leave will replace the current Sick Leave provisions of the Code. Employees continue to be entitled to a medical leave of absence of up to seventeen (17) weeks. Medical Leave can be used for personal illness or injury, organ donation or medical appointments during work hours. An employer may require an employee to provide a medical certificate from a healthcare practitioner for leaves that are in excess of three (3) days. Employers are also statutorily prohibited from disciplining employees who take medical leave.
Bereavement Leave
Bereavement Leave is increased from three (3) to five (5) days where the death of an immediate family occurs. The first three (3) days are paid days where, an employee has completed thirty (30) days of continuous employment.
Victims of Family Violence
An employee who is a victim of family violence or who is a parent of a child who is a victim of family violence will now be entitled to up to ten (10) days’ leave per year. The first five (5) days of the leave will be paid where an employee has worked for the employer for three (3) continuous months.
Court and Jury Duty Leave
The Code does not presently allow for a leave related to court or jury duties. Employees who are required to attend court to act as a witness or juror in a proceeding or participate in jury selection will now be entitled to a statutory protected unpaid leave of absence. There is no limitation on the length or frequency of the leave.
Traditional Aboriginal Practices Leave
Every employee who is an Aboriginal person (Indian, Inuit or Metis) and who has been employed for three (3) continuous months will now be entitled to five (5) days’ leave per year to engage in traditional Aboriginal practices including hunting, fishing, harvesting or any practice prescribed by regulation.
Minimum Service Requirements
Bill C-86 eliminates the minimum six (6) month service requirement for certain leaves. Employees therefore will no longer have to work a minimum of six (6) months to be eligible for Maternity Leave, Parental Leave and Leave Related to Critical Illness or Leave Related to Death or Disappearance of a Child.
Leave for Pregnant or Nursing Women
Employees may now obtain a certificate from a “healthcare practitioner” versus a “qualified medical practitioner” to support eligibility for an unpaid leave during the twenty-four (24) weeks following the birth of the employee’s child where the employee is unable to work due to pregnancy or nursing.
Shared Parental Leave
Where two (2) employees who are parents share Parental Leave in respect of the same birth or adoption, the total leave will increase from sixty-three (63) to seventy-one (71) weeks (the maximum Parental Leave shared between parents). The total amount of Maternity and Parental Leave that may be taken by two employees in respect of the same birth will increase from seventy-eight (78) to eighty-six (86) weeks.
Breaks and Rest Periods
Employees are entitled to a thirty (30) minute unpaid break for every five (5) consecutive hours of work. Where an employee is required to remain available to work, the break must be paid. Employers will have the ability to postpone or cancel a break to respond to circumstances that were not reasonably foreseen and that present an imminent or serious threat to the life, health or safety of any person, threat of damage to or loss of property or threat of serious interference with the ordinary working of the employer’s industrial establishment.
Employees will now be permitted to take breaks necessary for medical reasons, nursing or to express breast milk.
Every employee will now be entitled to at least eight (8) consecutive hours between work periods or shifts, however, employers may shorten the rest period for similar reasons required to postpone or cancel a thirty (30) minute break.
Scheduling of Hours and Overtime
Employers are now required to provide employees with at least ninety-six (96) hours of notice of their work schedule in writing, before the start of the first scheduled work period or shift. Employees now have the right to refuse a shift that starts within the ninety-six (96) hours except in specified circumstances. This rule will not apply where:
- A collective agreement specifies an alternative time frame for providing the work schedule or provides that the amendment does not apply;
- The scheduling change results from the employee’s request for flexible work arrangements; or
- It is necessary for the employee to work due to an unforeseeable emergency.
Twenty-four (24) hours’ written notice is now required the change an employee’s shift, except in emergency situations which the employer could not have reasonably foreseen such as those that present or could reasonably be expected to present an imminent or serious threat to the life, health or safety to any person, etc. The rule does not apply in similar circumstances noted for the ninety-six (96) hour advance notice of work schedules.
Employees may now also refuse to work overtime in order to carry out family responsibilities such as those related to the health or care of any of their family members or the education of any of their family members who are under the age of eighteen (18) provided, however, that they have carried out reasonable steps to address those responsibilities prior to the refusal of overtime. Overtime may now also be taken as time off in lieu, subject to certain conditions. The employer and employee must agree in writing and the time must be used within three (3) months and no later than twelve (12) months or such period specified by a Collective Agreement and otherwise must be paid.
Flexible Work Arrangements
Employees with at least six (6) months of continuous employment may now request a change to their work conditions such as their schedule, work location or other conditions prescribed by the legislation. Employers must respond to the request in writing within thirty (30) days, confirming their decision to grant or deny the request or setting out an alternative to the change proposed. An employer may refuse a request only for specified reasons which include additional cost that would burden the employer, detrimental impact on work quality or quantity, insufficient work and inability to reorganize work among employees. Employers are reminded to consider whether the request engages the employer’s independent duty to accommodate as contemplated by the Canadian Human Rights Act. Changes for unionized employees can only be made if agreed in writing by the employer and the union.
These amendments represent the first wave of changes to modernize the Code. Additional changes are contemplated in the areas of minimum wage, equal treatment, temporary help agencies, individual and group terminations of employment, unjust dismissal complaints and harassment and violence. We will continue to report on the various changes and invite you to contact us with any questions that you may have regarding the amendments to the Code and impact on your workplace.
Leanne Standryk is a senior partner within the Lancaster Brooks & Welch LLP, Labour & Employment Department and she may be contacted at 905-641-1551.
We confirm with you that the content of this article is to provide general information and should not be considered legal advice. Employers are encouraged to contact a member of our labour and employment group with any questions.