Checking In After a Few Months of Living with the Alberta Employment Standards Code Changes

13 mars 2018 | Jill W. Wilkie, Teri Treiber

( Disponible en anglais seulement )

A few months in to adjusting to Alberta’s Employment Standards Code changes, Alberta employers are continuing to review and revise existing policies and procedures to ensure they are in compliance with the new legislation.

Changes with respect to general holidays and overtime are some of the most impactful. Employers are finding that these changes have increased the cost of doing business. In addition, employers must be well-versed in the new job-protected leaves of absence that have been implemented. A high level summary of some of these changes is provided below.

General Holidays

All employees are eligible for general holiday pay immediately upon commencement of employment, provided that the employee was not absent without the employer’s consent on the last scheduled day before the general holiday or the first scheduled day after the general holiday and provided that the employee did not refuse to work on the general holiday when requested or scheduled to do so.

If an employee does not work on a general holiday, the employee is entitled to general holiday pay. General holiday pay is the employee’s average daily wage, calculated as 5% of the employee’s wages, general holiday pay and vacation pay in the 4 weeks immediately preceding the general holiday.

If an employee does work on a general holiday, the employee is entitled to general holiday pay plus 1.5 times the employee’s regular hourly wage rate for each hour worked on the general holiday. The other option is to simply pay the employee their regular hourly wage rate for each hour worked on the general holiday and then provide the employee with a paid day off at the employee’s average daily wage.

As before, for those employees who are salaried, if the employee does not work on the general holiday, then no additional pay is required (as it is accepted that the employee has received general holiday pay as part of their compensation).

Overtime

Most employees remain entitled to overtime pay (with the exception of some exempt occupations, as set out in the Employment Standards Regulation, along with those in supervisory or managerial positions). As before, employees are entitled to overtime pay for all hours worked in excess of 8 hours a day or 44 hours a week, whichever is greater.

If there is an overtime agreement in place, overtime hours can still be banked but must be banked at a rate of 1.5 hours for each overtime hour worked.

New rules with respect to averaging agreements have been implemented as well. We can assist you with development of an averaging agreement to help manage the accrual of overtime in circumstances where an employee works non-traditional hours.

Job-Protected Leaves of Absence

A number of new unpaid leaves of absence have been introduced, and some of the existing leave provisions have been expanded. One of the most significant changes is that employees will now be eligible for most of the job-protected leaves of absence after 90 days of employment, rather than one year. An employer can face serious consequences if it breaches these provisions of the legislation by terminating an employee who is on a protected leave. When employees return from these leaves, they must be returned to the same (or similar) position that they were in before the leave commenced.

Employees will be eligible for compassionate care leave if they care for or support a gravely ill family member who is at a significant risk of dying within 26 weeks, as established by a medical certificate. Employees can take up to 27 weeks of leave to care for their family member, and the period of leave can be split into multiple instalments (but each period must be at least one week in length).

Birth mothers can take up to 16 consecutive weeks of unpaid maternity leave, and the leave can start any time within the 13 weeks leading up to the estimated due date (but no later than the date of birth). Birth and adoptive parents can take up to 62 weeks of unpaid parental leave; birth mothers are eligible to transition into parental leave after the end of their maternity leave.

Employees can take up to 36 weeks of leave in order to care for, or provide support to, a critically ill child. If the employee is providing support to, or caring for, a critically ill adult family member, the employee will be eligible to take up to 16 weeks of leave in order to do so. Critical illness leave may be taken in more than one period but each period must be at least one week long. Employees who wish to be granted this leave must provide a medical certificate in order to confirm the fact that the child or adult is critically ill and requires the care or support of family members.

Employees who are ill, injured, or in quarantine can take a protected leave of absence for up to 16 weeks. The employee must provide a medical certificate to the employer in order to be granted the leave.

Employees who are the parents of a minor child who has died or disappeared, if it is probable that the death or disappearance of the child has occurred as a result of a criminal offence, are eligible to take a job-protected leave for up to 52 weeks if the child has disappeared, and up to 104 weeks if the child has died. If the employee is charged with the crime that resulted in the death or disappearance, they will not be entitled to the leave.

Other new or amended leaves include bereavement leave, citizenship ceremony leave, domestic violence leave, reservist leave, and personal and family responsibility leave.

Employees are now entitled to 3 days of unpaid bereavement leave upon the death of a family member. Employees are entitled to 3 days of bereavement leave per year, not per death. Employees are entitled to a half-day of unpaid leave in order to attend a Canadian citizenship ceremony. Employees who suffer from domestic violence are now entitled to leave of up to 10 days per year to take steps to protect themselves and their family members or dependents. Employees who are reservists and who have been employed for 26 weeks are entitled to unpaid leave in order to fulfil reserve duties. Finally, employees are now entitled to up to 5 days of leave per year in order to address family obligations or when necessary for the health of the employee.

Any employer with operations in Alberta needs to be up to date on all of the changes that have been implemented. Our lawyers would be pleased to assist you in this process. In addition, the Alberta Government has put together a webpage explaining the changes, along with providing FAQs, instructional videos and a revised toolkit for employers. These, and other, resources can be found here.

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