On September 1, 2019, a number of amendments to the Canada Labour Code, RSC 1985, c L-2 (the “Code”) come into force. These changes were enacted by Bill C-63, the Budget Implementation Act, 2017, No. 2 (“Bill C-63”) and Bill C-86, the Budget Implementation Act, 2018, No. 2 (“Bill C-86). Other amendments to the Code, including changes to equitable employment and termination notice, are set to come into force on a later date and are not discussed in this post. However, federally-regulated employers should take note that further changes to the Code are coming.
Some of the key changes Bill C-63 and Bill C-86 make to the Code on September 1, 2019 are:
Hours of Work
Flexible Work Arrangements – employees with six (6) consecutive months of continuous employment with their employer may request flexible work arrangements including, changes to their hours worked, schedule and work location. Employers must respond to these requests in writing, within 30 days and may only refuse the request on specific grounds.
Notice of Schedule – employers must provide employees with at least 96 hours’ notice before implementing a new schedule. Employees that are not given 96 hours’ notice may refuse to work a shift, unless they are needed to deal with an imminent or serious threat that the employer could not have reasonably foreseen.
Shift Change – if an employer wants to change or extend an employee’s shift, they must give the employee at least 24 hours’ notice of any change except in certain situations as described above.
Breaks and Rest Periods – every employee is entitled to one (1) unpaid break of at least 30 minutes for every five (5) consecutive hours of work. If the employee must be available to work during this break, then the employee must be paid for the break. Exceptions exist for emergency situations. Employees are also entitled to a minimum rest period of eight (8) hours between shifts.
Nursing and Medical Breaks – employees are entitled to unpaid breaks to nurse or express breast milk. Employees are also entitled to unpaid breaks for medical reasons. For medical breaks, employers may request medical certification setting out the necessary parameters of the breaks.
Refusing Overtime – employees may refuse to work requested overtime in order to fulfil certain family responsibilities. To refuse overtime, employees must have taken reasonable steps to satisfy their family responsibilities by other means. In certain exceptional circumstances, employees will not be permitted to refuse overtime to attend to family responsibilities.
Leaves of Absence
Bill C-63 and Bill C-86 make significant changes to leave of absence provisions in the Code. Some leaves have been altered and new leaves have been created. Some of the highlights are set out below.
The following new leaves have been created
- Personal Leave – employees are entitled to five (5) days of personal leave each calendar year. Employees may take this leave for a variety of personal reasons including, the injury of the employee or a family member, attending their citizenship ceremony or attending to an urgent matter. If the employee has completed three consecutive months of continuous service with their employer, then the first three (3) days of personal leave are paid.
- Family Responsibility Leave – an employee who has at least three (3) months of continuous, consecutive service with an employer is entitled to up to three (3) days of leave, every year, to attend to the health or care of family members, or education of family members under 18 years of age.
- Leave for Victims of Family Violence – if an employee or their child is a victim of family violence they are entitled to a leave of absence of up to 10 days every year. The leave may only be taken in certain circumstances, such as, to seek medical attention, or obtain legal or law enforcement assistance.
- Leave for Traditional Aboriginal Practices – Indigenous employees who have completed three (3) consecutive months of service are entitled to a leave of up to five (5) days in each calendar year, to engage in traditional Aboriginal practices.
- Court or Jury Duty Leave – employees are entitled to take a leave of absence if they are required to attend court to act as a witness, a juror or take part in the juror selection process.
Changes have been made to the following leaves
- Medical Leave – this leave replaces the existing sick leave provisions of the Code. The duration of the leave, 17 weeks, remains unchanged. Now, employees are no longer required to have completed three (3) consecutive continuous months of service to qualify for the leave. The scope of eligibility has also been expanded to include when an employee undergoes organ and tissue donation or has medical appointments. This is in addition to the already existing criteria of an employee’s illness or injury. If a medical leave of absence is three (3) days or longer, employers may request medical documentation justifying the absence.
- Bereavement Leave – the length of bereavement leave has been extended from three (3) to five (5) days. If the employee has completed three consecutive months of service with their employer, then the first three (3) days of bereavement leave are paid. An employee can take bereavement leave beginning on the day the death occurred and ending six (6) weeks following the latest of any funeral, burial or memorial service. Bereavement leave may be taken in one (1) or two (2) periods.
- Leave of Absence for Members of the Reserve Forces – the length of service requirement to obtain this leave has been shortened to three (3) months of continuous, consecutive service with the employer. The eligible reasons for this leave has also been expanded to include Canadian Armed Forces military skills training. The maximum leave entitlement under this leave is now 24 months in a 60 month period with certain exceptions.
Also, employees no longer need to have any length of service to be entitled to maternity, parental, critical illness, and death or disappearance of a child leaves.
Entitlement to vacation time has changed. Now, after five (5) years instead of six (6), employees will be entitled to three (3) weeks’ vacation. Additionally, after 10 years of continuous employment, employees will be entitled to four (4) weeks’ vacation. Employees may still take vacations in one period, however, if the employee makes a written request, and the employer approves the request, vacations may be taken in more than one period.
Entitlements to vacation time and pay are set out below.
|Length of Continuous Employment||Minimum Annual Vacation||Vacation Pay|
|1 year||2 weeks||4% of annual wages|
|5 years||3 weeks||6% of annual wages|
|10 years||4 weeks||8% of annual wages|
Many amendments have been made to the Code and more will come into force in the future. Employers should review their policies to ensure compliance with these changes, if they haven’t already done so.
For more information, please see: Order Fixing September 1, 2019 as the Day on which Certain Provisions of that Act Come into Force
The foregoing is for informational purposes only and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of SOM LLP’s lawyer’s by email or telephone.