Canada: Amendments To The Canada Labour Code: Work-Life Balance Provisions For Employees In Federally Regulated Workplaces Coming Into Full Force

Important changes to federal employment standards under Part III the Canada Labour Code are set to come into effect on September 1, 2019, that will have a significant impact on many employers operating in the federal sphere. Amendments to the Code include a new right for employees to request flexible work arrangements, additional leaves, and other measures geared to enhancing flexibility in the workplace. These important changes are discussed below.

Amendments to the Code

Flexible Work Arrangements

Under the new provisions of the Code, an employee who has completed six months of continuous employment with a federally regulated employer may request flexible arrangements relating to his or her number of hours, work schedule, or work location, and other details that may be later prescribed by regulation. 

Employees will be required to make a request in writing. Among other requirements, all employee requests for a flexible work arrangement must explain the effect the request may have on the employer and suggest how this effect could be properly managed. Note that any request the employer receives must be well documented.

Should an employer entirely or partly refuse a request, the employer will be required to provide the reason(s) in writing. The Code prescribes a narrow list of reasons for which an employer may refuse an employee request, namely:

  • if the request would result in additional costs that would be a burden on the employer; 
  • if the request would have a detrimental impact on the quality or quantity of work within the establishment; 
  • if the employer is unable to reorganize work among existing employees or recruit additional employees to manage the request; 
  • if there would be insufficient work available for the employee if the request was granted; 
  • and any other reason prescribed by regulation. 

New Leaves

  • Personal Leave: Employees will now be entitled to five days of personal leave per year. For employees with three consecutive months of continuous employment the first three days must be paid. Employees may take this leave to treat illness or injury, carry out responsibilities related to the health or care of any family members, carry out responsibilities related to the education of any family members who are under 18 years of age, address any urgent matter concerning themselves or their family members, attend their citizenship ceremony or any other reason prescribed by regulation.
  • Leave for Traditional Aboriginal Practices: This unpaid leave provides employees with up to five days per year to engage in traditional Aboriginal practices, such as hunting, fishing, harvesting and other practices prescribed by regulation. This leave is available for Aboriginal persons, (defined as Indian, Inuit or Métis) who have completed at least three consecutive months of continuous service. 
  • Leave for Victims of Family Violence: This leave provides an employee who is the victim of family violence, or who is the parent of a child who is the victim of family violence, up to 10 days leave per year. Employees who have completed three consecutive months of continuous employment are entitled be paid for the first five days of this leave. 
  • Leave for Court or Jury duty: This leave has no requirement for a minimum length of service, and permits employees to take unpaid leave to attend court to act as a witness or juror in a proceeding, or participate in a jury selection process. 
  • Leave for Pregnant or Nursing Women: If an employee is unable to work due to pregnancy or nursing, unpaid leave may be taken from the beginning of the pregnancy up until the 24th week following the birth of the employee's child. Note that this leave is distinct from maternity or parental leave.
  • Bereavement Leave: Bereavement leave will be increased from three days to five days. This change entitles employees who have completed three consecutive months of continuous employment to be paid for the first three days of leave and to take the leave in one or two periods.  The entitlement to leave begins on the day the death of the immediate family member occurs, up to six weeks after the latest of the days on which any funeral, burial or memorial service occurs.
  • Medical Leave: Medical leave replaced sick leave in the Code, and entitles every employee to an unpaid leave of up to 17 weeks as a result of personal illness or injury, organ or tissue donation, and medical appointments during working hours. Notably, employees are no longer required to have worked for a certain continuous period of time to benefit from this leave.

These leaves will not be prorated for 2019, meaning employees will be entitled to the full periods of leaves provided by these amendments, as of September 2019. Part-time and temporary employees are also entitled to these leaves, on a non-prorated basis. Students and interns will also be entitled to these leaves.

The federal government's Labour Program has recently clarified that these new leaves may also be used concurrently with other leaves provided by the Code as long as the purpose of the leaves is the same. For example, an employee who takes a personal day to care for an ill family member may also take medical leave, or critical illness leave to care for that ill family member, provided he or she meets the criteria to qualify for those leaves. 

Employees whose collective agreement or employment contract provides the same amount and type of leave will not be eligible for additional leave under the Code, provided the leave in the collective agreement or employment contract can be taken for the same reason as those provided by the Code.

Vacation

Employees may be entitled to take their vacation all in one period or in multiple periods. They can also interrupt or postpone an approved vacation to take a leave of absence, which includes any of the new leaves noted above. Vacation pay and time entitlements have also been increased to the following levels:

  • Two weeks' vacation (4% vacation pay at 4% gross earnings) after one year of continuous employment;
  • Three weeks' vacation (vacation pay at 6% gross earnings) after five consecutive years of continuous employment;
  • Four weeks' vacation (vacation pay at 8% of gross earnings) after ten consecutive years of continuous employment.

In addition, during every year of employment, employees are entitled to a vacation with vacation pay of:

  • at least two weeks if they have completed at least one year of employment; 
  • at least three weeks if they have completed at least five consecutive years of employment with the same employer; and 
  • at least four weeks if they have completed at least 10 consecutive years of employment with the same employer.

Take-aways

Many employers already have employment contracts, policies or collective agreements that govern employee requests for flexible work arrangements or to take one of the leaves mentioned above. However, employers must consider whether employees are afforded a greater benefit under their current contract in comparison with the new leaves under the Code, failing which, employers may have to revise their leave provisions or provide additional days of leave to comply with the Code

In particular, this analysis will be necessary for the paid leaves the Code now provides. For example, if an employee already has three paid personal days, but those days cannot be used for a purpose set out in the Code (e.g., education of an immediate family member), an employer will likely have to expand its definition of personal days to include the same reasons provided for under the Code.  

With these new leaves, employers may see an increase in stacking of multiple leaves, depending on the circumstances. In particular, many leaves under the Code can be taken for similar reasons, and an employer may not have discretion on the timing of these leaves if they are all taken for the same purpose (i.e., personal leave, medical leave and critical illness leave could be taken consecutively). In that sense, employers should be aware that their usual discretion in approving multiple or consecutive requests for leave will not necessarily apply for the leaves provided under the Code

As well, employers must make adequate changes to their systems to ensure  part-time and temporary employees are paid according to the calculation set out in subsection 17 (a) of the Regulations Amending the Canada Labour Standards, which will also come into force on September 1, 2019. For those employees, paid days for personal leave, family violence leave and bereavement leave are calculated by the average of the employee's daily earnings, exclusive of overtime hours, for the 20 days the employee has worked immediately preceding the first day of the period of paid leave. 

Moreover, although employers will retain a certain discretion when considering requests made for flexible work arrangements, the acceptable grounds for refusal are now narrowly prescribed by the Code. Employers would do well to assess what impact this new framework for flexible work arrangement requests will have on the workplace, and consider amending or developing protocols and policies, if appropriate. For example, an employer may wish to set out scenarios where changes to an employee's work schedule, location or hours are feasible, or not, depending on the business's operational needs.

Likewise, employers will retain discretion regarding granting or denying requests for multiple periods of vacation, having regard to their operational requirements. The Code does not constrain the circumstances regarding when these requests can be made, and thus, where appropriate, employers may wish to develop internal criteria for such requests, as well as procedures for processing the requests, which must be done in writing.

It is important that employers carefully review their relevant employee documents, policies, collective agreements, procedures and practices to ensure compliance with the terms of these new provisions, as they will very soon be in full force.


About Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global law firm. We provide the world's preeminent corporations and financial institutions with a full business law service. We have 3800 lawyers and other legal staff based in more than 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

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Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

For more information about Norton Rose Fulbright, see nortonrosefulbright.com/legal-notices.

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