Canada: Sweeping Changes To The Canada Labour Code In Force September 1, 2019 - Federal Employers, Are You Prepared?

Labour, Employment and Human Rights bulletin
Last Updated: August 14 2019
Article by Shane Todd and Rachel Devon

Major changes to the Canada Labour Code are coming into force on September 1, 2019.

The changes apply to a dizzying number of labour standards from scheduling to breaks, vacations to holiday pay, and leaves of absences, among others. Given the sweeping nature of these reforms, the changes will have a significant impact on federally regulated workplaces.

Below is a high level summary of the amendments coming into force on September 1, 2019, under Bill C-63, Budget Implementation Act, 2017, No. 2 and Bill C-86, Budget Implementation Act, 2018, No. 2. Amendments coming into force at later dates have not been summarized.

Hours of Work - Scheduling, Breaks and Rest Periods

  • 24 hours' notice of shift change: Employers must provide 24 hours' written notice of any change or addition to a work period or shift. This requirement will not apply if the change or addition (i) is the result of the employee's request for a flexible work arrangement, or (ii) is necessary to deal with an unforeseeable emergency.1 Managers and certain professionals are excluded.
  • Right to refuse overtime for family responsibilities: Employees will have the right to refuse overtime in order to carry out responsibilities related (i) to the health or care of a family member, or (ii) to the education of any family member who is less than 18 years old. This is provided the employee has first taken "reasonable steps" to carry out the family responsibility by other means. There is an exception where the employee must work overtime to deal with an unforeseeable emergency. Managers and certain professionals are excluded. Employees are protected from reprisal for exercising this right.
  • 96 hours' advance notice of schedule: Employers must provide 96 hours' notice in writing of an employee's work schedule. Work schedules must be provided in writing. Employees may refuse to work any shift that starts less than 96 hours after the schedule is received. This rule will not apply where (i) a collective agreement specifies an alternate time frame for providing the work schedule or provides that this section does not apply, (ii) the scheduling change results from the employee's request for flexible work arrangements, or (iii) it is necessary for the employee to work in order to deal with an unforeseeable emergency. Managers and certain professionals are excluded.
  • Paid time off in lieu of overtime: Employees may enter into an agreement with their employer to be granted time off of not less than 1.5 hours of time off with pay for each hour of overtime worked. The time off must be used within three months unless otherwise agreed (but not longer than 12 months or any other period specified in a collective agreement), failing which overtime pay must be paid out.
  • Modified work schedules: The Code will allow modified work schedules, including those under which the hours exceed the maximum set out in the Code, to apply to individual employees not just groups of employees.
  • Medical breaks: Employees may take any unpaid breaks necessary for medical reasons (i.e., to take medication, or short rest or exercise periods). Employers will have the right to request a certificate from a "health-care practitioner" - a person lawfully entitled to provide health services -- indicating the length and frequency of medical breaks needed, and any other information prescribed by regulation. Regulations may exempt any class of employees from these provisions if it cannot reasonably be applied to them or specify circumstances in which these breaks cannot be taken.
  • Nursing breaks: An employee who is nursing may take any unpaid breaks necessary to nurse or express breast milk. No medical or other certificate will be required. Regulations may exempt any class of employees from these provisions if it cannot reasonably be applied to them or specify circumstances in which these breaks cannot be taken.
  • 30 minute breaks every 5 hours: Employers will be required to provide their employees with an unpaid break of at least 30 minutes within every period of five consecutive hours of work. The break must be paid if the employer requires the employee to remain at its disposal during the break. An employer will have the right to postpone or cancel a break if the employee must work to deal with an unforeseeable emergency. Managers and certain professionals are excluded.
  • Eight-hour rest periods: Employees must be granted a rest period of at least eight consecutive hours between work periods or shifts. The rest period can be postponed or shortened if the employee must work to deal with an unforeseeable emergency. Managers and certain professionals are excluded.

Flexible Work Arrangements

  • Right to Request Flex Work: After six consecutive months of employment, employees will have a right to request a change to hours, work schedule, location, and other terms and conditions to be prescribed. An employer may refuse such a request only on certain grounds (e.g., additional cost that would burden the employer, detrimental impact on work quality or quantity, insufficient work, and inability to reorganize work among employees). Employers must respond to the request in writing within 30 days. Changes can only be made for unionized employees if agreed in writing by the employer and union.

Leaves of Absence

  • Eligibility for leaves: The minimum length of service requirement has been eliminated for entitlement to sick leave (now called medical leave), maternity and parental leave, leave related to critical illness, and leave related to death or disappearance of a child.
  • Leave for traditional Aboriginal practices: Aboriginal2 employees who have completed at least three consecutive months of continuous employment may take up to five days of unpaid leave each calendar year to participate in traditional Aboriginal practices, including hunting, fishing, and harvesting, and other practices which may be prescribed by regulation.
  • Personal leave: Employees will be entitled to a new personal leave of up to five days per calendar year, including three days with pay, after three consecutive months of continuous employment. Employer may request supporting documentation no later than 15 days after an employee returns to work and the employee must provide it if reasonably practicable. This leave may be taken to deal with:
    1. personal illness or injury (in addition to medical leave);
    2. responsibilities regarding the health or care of a family member;
    3. responsibilities regarding the education of a family member who is less than 18 years of age;
    4. an urgent matter concerning the employee or a family member;
    5. attending one's Canadian citizenship ceremony; or
    6. additional reasons prescribed by regulation.
  • Leave for victims of family violence: Employees will be entitled to a new leave of up to 10 days each calendar year if an employee or their child is a victim of family violence. The first five days are paid for employees with at least three consecutive months of continuous employment. The leave can be taken only in certain situations as outlined in the legislation, such as obtaining professional counselling. Employer may request supporting documentation no later than 15 days after an employee returns to work and the employee must provide it if reasonably practicable.
  • Leave for jury duty or court: Employees may take a leave of absence for the length of time necessary to attend court to act as a witness or juror, or to participate in jury selection. The employer may request and the employee must provide supporting documentation.
  • Certificates provided by health-care practitioners: Certificates for certain leaves may now be provided by a "health-care practitioner", rather than a "qualified medical practitioner", thereby expanding the categories of professionals who can provide certificates required to qualify for certain leaves.
  • Changes to bereavement leave: Bereavement leave will be extended to add two additional unpaid days to the existing three paid days of leave. The first three days are only paid after three months of employment. The leave entitlement begins on the day on which 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.
  • Changes to reservist leave: The eligibility period for reservist leave has been reduced from six months of employment to three months. The scope of the leave has also been expanded to cover military skills training. The legislation sets a 24-month cap to the total amount of leave that may be taken in any 60-month period, subject to certain exceptions.
  • Medical leave: Sick leave is now called medical leave, and its scope has been expanded to cover organ or tissue donations and medical appointments during working hours. The length of the leave (17 weeks) is unchanged.

Vacations and Holidays

  • Vacation entitlements: Vacation entitlements will be increased to the following:
    1. After 1 year – two weeks and 4% vacation pay (unchanged);
    2. After 5 years – three weeks and 6% vacation pay (currently after six years); and
    3. After 10 years – four weeks and 8% vacation pay (new entitlement).
    4. Annual vacation may also now be taken in more than one period.
  • Interruptions if eligible for another leave: An employee may interrupt or postpone a vacation in order to take another leave of absence, including maternity leave, parental leave, compassionate care leave, family responsibility leave, leave for victims of family violence, leave for traditional Aboriginal practices, or bereavement leave. An employee may also interrupt vacation to be absent from work due to illness or injury.
  • Eligibility for general holiday pay: The 30-day length of service requirement for entitlement to holiday pay will be eliminated. All employees are now entitled to holiday pay.
  • Substituting another day off for a general holiday: Any "day" may be substituted for a general holiday, subject to approval and posting requirements; the substituted day no longer has to be a "holiday". Where there is a collective agreement, this change must be agreed in writing by the employer and the union.

Transfers and Continuity of Employment

  • Continuity of Employer for Contract Tenders and Provincial to Federal Transfers: The Code will allow for continuity of employment in the case of provincial to federal transfers (where a provincially regulated operation becomes federally regulated), as well as in the case of contract retendering, subject to certain exceptions.

Regulations

  • New Regulations: Amendments to the Canada Labour Standards Regulations will also come into force on September 1, 2019. These amendments will align the Regulations with the amended Code provisions and support their implementation. Notably, the Regulations contain significant record-keeping requirements in relation to the new provisions. Additional regulations are forthcoming and will be developed based on feedback from stakeholders.

Employers should review these amended labour standards against their current policies and collective agreements to ensure they are in compliance on September 1st, 2019.

Footnotes

[1] This exception for unforeseeable emergencies applies to "a situation that the employer could not have reasonably foreseen and that presents or could reasonably be expected to present an imminent or serious (i) threat to the life, health or safety of any person; (ii) threat of damage to or loss of property; or (iii) threat of serious interference with the ordinary working of the employer's industrial establishment."

[2] "Aboriginal" means Indian, Inuit or Métis according to the Code.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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