On September 1, 2019, a number of the amendments to the Canada Labour Code (the “Code”) which we described in our November 5, 2018 communiqué are scheduled to come into force. Many of these amendments create new leave entitlements and modify existing ones. A host of changes to scheduling rules, continuity of employment provisions, vacation entitlements, and more will also come into effect. It is crucial for federally regulated employers to be aware of the new obligations that these amendments place upon them and to prepare accordingly. This communiqué is intended to highlight the key changes coming to workplaces across the country.
Changes to Scheduling Rules
The new rules around employee scheduling have been the subject of concern to some employers. For instance, employers in the transportation industry are relied upon to provide continuity of service and to abide by strict delivery timelines. Provisions which require employees to be given 24 hours’ advance written notice of a shift change may strain such operations. The key changes to the scheduling provisions of the Code are as follows:
Shift Changes: The amendments will require employers to give employees 24 hours’ written notice of an employee’s shift change unless the change was not reasonably foreseeable and is needed to deal with an “imminent or serious” threat to life, health, safety of a person, threat of damage or loss of property, or serious interference with the “ordinary working of the employer’s industrial establishment.”
Rest Periods: Employees will be entitled to a rest period of at least eight consecutive hours between shifts, subject to the emergency situations described above.
96 Hours’ Notice of Schedule: Employers will be required to provide an employee with their work schedule at least 96 hours before their first shift is to begin; an employee may refuse to work any shift starting less than 96 hours before notice is provided. Exceptions are permitted where the employment relationship is subject to a collective agreement which specifies alternative time frames, or where there is an emergency situation as described above.
Overtime Refusal: An employee will be permitted to refuse to work overtime in order to fulfil a family responsibility, provided they have taken reasonable steps to try to carry out their responsibility by other means.
Overtime Pay: Subject to certain conditions (some to be set out by regulation), employees may be granted 1.5 hours of time off with pay for each hour of overtime worked (rather than being paid for the overtime). This must be agreed to in writing by the employer and employee, and the time off must be taken within three months, subject to prescribed exceptions.
Flexible Work Arrangements: An employee who has completed six months of continuous employment can request a change in working conditions (including total hours, schedule, location, and other prescribed conditions); an employer may only refuse the request on the basis of a set of prescribed grounds, and must do so in writing.
Medical and Nursing Breaks: Amendments will allow employees to take unpaid breaks as needed for medical reasons or for nursing. For medical breaks, employers may request a certificate from a health care practitioner, and certain classes of employees may be exempted by regulation. As to nursing breaks, an employer cannot request a certificate.
Unpaid Breaks: Employees will be entitled to an unpaid break of at least 30 minutes during every period of five consecutive hours of work. If the employer requires the employee to be at their disposal during the break period, the employee must be paid for the break. The availability of this break is subject to the emergency situations described above.
Changes to Holiday and Vacation Entitlements
Vacation Pay and Entitlement: An employee will be entitled to a vacation with pay equal to the following:
At least one year of service: Two weeks and 4% of wages
At least five years of service: Three weeks and 6% of wages
At least ten years of service: Four weeks and 8% of wages
Paid Holidays: Entitlement to holiday pay will begin when employment commences; there is no longer a 30-day service requirement.
Changes to Leave Entitlements
Another major set of changes to the Canada Labour Code is the introduction of new leave entitlements for employees and the modification of existing entitlements.
Personal Leave: Employees will be permitted to take up to five days of leave per year for illness and other prescribed activities, such as “addressing any urgent matter concerning themselves or their family members.” If the employee has three continuous months of service with the employer, the first three days of the leave will be paid. The employee can be required to provide documentation in situations where it is “reasonably practicable” for them to do so.
Leave for Victims of Family Violence: The Code is amended to provide employees with 10 days of leave if they are a victim of family violence or are the parent of a child who is a victim of family violence. There are limited purposes for which an employee may use the leave; for example, they will be eligible for the leave if it will enable them to relocate or to participate in a legal proceeding. The first five days of this leave will be paid if the employee has been employed for three continuous months with the employer.
Medical Leave: This leave replaces the existing “sick leave” provisions of the Code. While the duration of the leave (17 weeks) is unchanged, the new provisions remove the requirement that the employee have three months of continuous service. The amendments also expand eligibility beyond circumstances of “personal illness or injury” to cover organ and tissue donation as well as medical appointments during working hours. An employer can now only require a medical certificate if the employee’s absence is for three days or longer.
Leave for Traditional Aboriginal Practices: This amendment provides that any employee who has three months of continuous employment with the employer and is an Aboriginal person is entitled to take a leave of absence of up to five days per year to engage in prescribed traditional Aboriginal practices, including hunting, fishing, and harvesting.
Leaves Related to Critical Illness and Death or Disappearance: Amendments were made to these pre-existing leaves to remove the requirement that the employee must have been employed for six consecutive months before being eligible for these leaves. Employees will be eligible for the leave immediately upon hiring.
Leave for Members of the Reserve Force: This leave is currently in the Code. Amendments reduce the minimum number of months required to be entitled to this leave from six to three, cap leave at 24 months in a 60-month period unless a national emergency is declared, and expand the scope of the leave to include Canadian Armed Forces military skills training.
Maternity/Parental Leave: Amendments remove the requirement that the employee must have been employed for six consecutive months before taking this leave.
Leave for Court or Jury Duty: The Code is amended to create an entitlement for employees to take a leave of absence to attend court for a variety of reasons, including acting as a witness or as a juror in a proceeding or to participate in a jury selection process.
Bereavement Leave: While this leave currently exists in the Code, amendments increase the number of permitted leave days from three to five, the first three of which must be paid if the employee has at least three months of service. Additionally, the leave now may be taken at any time in the six weeks following the “latest of the days on which any funeral, burial, or memorial service” of an immediate family member occurs.
Changes to Continuity of Employment Provisions
Retendering: Where a contract is awarded through a retendering process, the amended Canada Labour Code will require that an employee who was connected with the operation before and after re-tendering be deemed to be continuously employed with one employer, subject to prescribed exceptions.
Change of Activities: Where an employer’s work, undertaking, or business becomes federally regulated due to a change of activities, an employee’s period of continuous employment will be deemed to include the period in which the employer was provincially regulated.
Given the sweeping changes that are poised to take place in the coming weeks, we encourage you to contact a member of our team if you or your organization has any questions about these new statutory obligations.
Some amendments introduced by the above-mentioned legislation, including the introduction of a graduated system for notice of termination based upon years of service, do not yet have a coming into force date. Likewise, Bill C-65, An Act to Amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1 received Royal Assent on October 25, 2018, but is unlikely to come into force until 2020. We will continue to monitor and provide updates on developments in this area as they are announced.