Update on Medical and Personal Leaves under the Canada Labour Code, Upcoming Deadlines under the Accessible Canada Act, and More
Date: February 27, 2023
In this Federal Post, we discuss the practical challenges confronting federal employers when implementing the new medical and personal leaves under the Canada Labour Code. We also look at upcoming compliance deadlines under the Accessible Canada Act regulations and the federal Pay Equity Act.
Medical and Personal Leaves under the Canada Labour Code
By: Nigel McKechnie
On December 1, 2022, amendments to the Canada Labour Code (Code) came into force, providing for paid medical leave and changing the reasons for use of personal leave. Implementing paid medical leave, in conjunction with both paid and unpaid personal leave under s. 206.6 of the Code as well as with existing leaves under employer policies or collective agreements, has created some challenges for employers. This article addresses the updates to medical and personal leave and how the updated leaves may interact with existing leaves of absence.
What is the entitlement to paid and unpaid personal leave under s. 206.6?
Section 206.6 of the Code provides that every employee is entitled to a leave of absence from employment of up to five days in a calendar year for:
- carrying out responsibilities related to the health or care of family members
- carrying out responsibilities related to the education of family members under 18 years of age
- addressing urgent matters regarding themselves or family members
- attending their citizenship ceremony
- any other reason in the regulations (none currently)
Given the introduction of paid medical leave into the Code, an employee’s injury or illness has been removed as a qualifying reason to take personal leave.
Employees with at least three consecutive months of continuous service are entitled to be paid for the first three days of personal leave that are used in a calendar year. Employers are permitted to insist that the leave be taken for at least one day. No later than 15 days after an employee’s return to work, the employer may request in writing that the employee provide documentation to support the reasons for the leave. The employee is required to provide the requested documentation if it is reasonably practicable in the circumstances to obtain and provide it.
How does personal leave under the Code interact with existing personal leave under current policies or collective agreements?
Many employers already have employment contracts, policies or collective agreements in place providing for five or more days of personal leave. According to non-binding guidance issued by the federal government on personal leave, employees will not be entitled to five additional days of personal leave over and above existing entitlements if:
- the existing leave can be taken for any of the reasons listed in the Code
- the employee can break up the leave into at least five one-day blocks
- the conditions under which the leave is taken are as good as or better than what is provided in the Code (i.e. the conditions for taking the leave, the amount of pay for the leave, the accrual and maintenance of insurance, pension and other benefits during the leave, and the job-protected nature of the leave)
Employers will want to review their existing personal leave policies and collective agreements to canvass whether these criteria are met. They may want to seek legal advice on issues including about whether and how the Code-provided personal leave will “stack” on top of existing entitlements, and, if that outcome is not desired, how to adapt existing policies accordingly.
What if the employer provides personal leave for some—but not all—of the reasons in the Code?
Based on the federal government’s non-binding guidance, if an employee has used fewer than five days of personal leave in the calendar year, they can take personal leave under the Code for reasons that are not provided for in an existing policy or collective agreement. For example, if a collective agreement provides for three paid days to take care of family members when they are ill (but no leave relating to the other qualifying events for personal leave under the Code), an employee could take all three days to care for the health of their family member under the collective agreement. They can then use the two remaining Code personal days to address an urgent personal matter (or other qualifying condition for personal leave under the Code).
What is the entitlement to paid medical leave under s. 239 of the Code?
Federally regulated employees are entitled to up to 10 days of paid medical leave per calendar year for:
- personal illness or injury
- organ or tissue donation
- medical appointments during working hours
On completion of 30 days’ continuous service, employees accrue three days of paid medical leave and then one day of paid medical leave per additional completed month of continuous employment to a maximum of 10 days of paid medical leave per year. As of December 31, 2022, existing employees accrued three days of paid medical leave.
Employees are allowed to carry over accrued, unused paid medical leave days into the next year. Any such carryover will reduce the amount they accrue in the next year, so they can accrue only up to the maximum of 10 days of paid medical leave per year. Finally, employers can require a medical certificate only if an employee uses five days or more of paid medical leave in a row. The request for a medical certificate must be in writing and made no later than 15 days after the employee’s return to work.
Medical leave with pay is in addition to the existing 27 weeks of unpaid medical leave available under the Code for the same reasons that medical leave with pay is available.
The medical leave with pay provisions apply to all types of employees (full-time, part-time, contract, etc.) and regardless of the size of the federally regulated employer.
How does this legislative paid medical leave interact with any existing sick leave under policies or collective agreements?
Depending on the wording of such policies or collective agreements, existing days of paid leave may count towards an employee’s entitlement to medical leave with pay under the Code. According to non-binding guidance issued by the federal government on stacking, the Code’s medical leave with pay does not stack on top of existing sick leave provisions if the following criteria are met:
- the existing leave can be taken for personal illness or injury, organ or tissue donation, medical appointments during working hours, or quarantine
- the existing leave can be broken into multiple periods of no less than one day
- the employee is entitled to receive their regular rate of wages for each day of the existing leave, maintain and accumulate pension, health and disability benefits and seniority during the leave, and be reinstated thereafter
- no medical note is required for the first four consecutive days of absence (i.e. not until five or more days of consecutive absence)
If an existing policy or collective agreement provides for paid leave for some but not all of the Code’s qualifying reasons for paid medical leave, the existing leave days may also count as paid medical leave days and an employee may have a remaining entitlement to paid medical leave for the remaining number of days. Employers will want to seek specific advice regarding how their policies and collective agreements interact with the Code.
What about the interaction of “all-purpose” leaves under current policies or collective agreements with the Code’s paid medical leave?
The federal government takes the position that in order for the Code’s medical leave with pay to be offset by any existing contractual leaves, the two leaves must be “similar in scope.” Therefore, in order to offset against the Code’s leave, the existing leave must directly relate to leave for medical reasons. All-purpose leaves, additional vacation or float days will not count towards the Code’s medical leave with pay entitlements because they do not relate directly to medical leave.
Note that the relevant government-issued guidance, while not legally binding, is nonetheless likely to have persuasive value and could influence adjudicators’ interpretation of the statutory provisions. We will provide updates, as appropriate, once adjudicators or the courts have had an opportunity to deal with these issues.
In the interim, it is critical for employers to review their leave policies to determine if the wording is sufficient to offset against the Code’s leaves and obtain legal advice as appropriate.
Upcoming Compliance Deadlines – Accessible Canada Act
By: Rachel Jadd
Federal private sector employers should be turning their minds to the upcoming deadlines under the Accessible Canada Act (Act).
By way of background, the Accessible Canada Regulations (Regulations) set out a framework to promote compliance with the federal accessibility requirements under the Act.
Specifically, the Regulations provide criteria for the development and publication of accessibility plans, progress reports and feedback processes. The Regulations also set out monetary penalties for violation of the rules.
The above criteria are satisfied through a three-year planning and reporting cycle. The first year of the cycle requires entities to prepare and publish an accessibility plan, followed by the issuance of progress reports in each of years two and three. The cycle then repeats.
For organizations with an online presence, the materials must be available on their website, either through a hyperlink or on their homepage. These organizations must comply with the latest version of the Web Content Accessibility Guidelines, which set out guidelines for website design for the purposes of assisting individuals with disabilities.
Organizations that do not have a digital platform are required to clearly display a copy of the materials at their place of business, in a location that is accessible to the public (i.e. in the reception area or entrance of each place of business).
In addition, within 48 hours of publication, the Accessibility Commissioner must be provided with notification of where the accessibility plans, progress reports and feedback processes can be located.
Upcoming deadlines for federal private sector entities
Federal private sector entities with an average of 100 or more employees must prepare and publish their first accessibility plans by June 1, 2023. Smaller private sector entities with an average of 10 to 99 employees have until June 1, 2024 to comply.
If a previously exempt entity has an average of 10 or more employees by June 1, 2023, it will have until June 1 of the following year to complete the accessibility plan.
An accessibility plan must include the following headings and information:
- General – This section must include the position title of the person designated to receive feedback. It must also include a telephone number, email address and mailing address. The purpose of this requirement is to enable people to request the accessibility plan and descriptions of the feedback process in alternate formats, as well as to provide feedback.
- Areas of the Act – This section must describe the organization’s policies, programs, practices and services in relation to the identification and removal of barriers (i.e. anything that hinders the full and equal participation of persons with a wide range of impairments) and the prevention of new barriers in each of the following areas:
- the built environment
- information and communication technologies
- communication (other than information and communication technologies)
- the procurement of goods, services and facilities
- the design and delivery of programs and services
- Consultations – This section requires a description of the manner in which disabled individuals were consulted during the preparation of the accessibility plan.
- Recommended Content – The government recommends that each organization’s accessibility plan also address:
- short- and long-term accessibility goals
- current and future plans for improving accessibility
- available resources to improve accessibility and to support persons with disabilities
- the organization’s approach to accessibility training
- how accessibility fits into the organization’s overall goals, values and culture, and how it is promoted
Upcoming deadlines for federal government departments, the Canadian Forces, agencies and Crown corporations
Entities that completed the accessibility plan in 2022 must publish a progress report by June 1, 2023. The headings and information contained in the progress report are very similar to those contained in the accessibility plan, except that a progress report must also include a section addressing feedback it received through its feedback process and describe how that information was taken into consideration.
Accessibility standards published
Note that on February 16, 2023, three new accessibility standards developed by Accessibility Standards Canada and the CSA Group were published:
- accessible design for the built environment
- accessible design for self-service interactive devices including automated banking machines
- accessible dwellings
If you have not yet developed your accessibility plan and require assistance, please contact your regular Hicks Morley lawyer.
Upcoming Compliance Deadline – Federal Pay Equity Act
By: Lucy Wu
The deadline for federally regulated employers to meet their pay equity obligations is approaching. As we discussed in an earlier post, the federal Pay Equity Act came into force on August 31, 2021. It provides that all federally regulated public sector and private sector employers with 10 or more federally regulated employees will have three years to develop and implement their Pay Equity Plan (Plan). All employers must create and evaluate job classes, determine their predominance, calculate and compare compensation, and post a final Plan by September 3, 2024 (note the legislated deadline is August 31, 2024 but the date identified by the Pay Equity Commission for the plan to be posted is September 3, 2024, which is the next business day after August 31, 2024).
It is important that employers understand their pay equity obligations and timelines as the steps they need to take to meet these obligations take time. Once the final version of the Plan has been posted, employers must correct any pay equity gaps by implementing increases in compensation. These increases are payable in full the day after the final version of the Plan is posted, but may be allowed to be phased in in some circumstances.
About Hicks Morley
Hicks Morley has over 50 years of experience providing advice within the federal sector and to all types of federally regulated employers. We draw on the depth of this experience to help our clients with all of their human resources law needs.
We assist with the management of workplaces in the federal sector and in promoting the ongoing development and implementation of policies and procedures to enhance employee engagement. We help federal organizations proactively manage and resolve their labour and employment issues across the human resources spectrum and we advise on all aspects of the Canada Labour Code, Canadian Human Rights Act, Pay Equity Act, Employment Equity Act and Government Employees Compensation Act, as well as jurisdictional matters. We represent federal employers in a wide variety of forums, appearing before the Canadian Industrial Relations Board, the Federal Public Sector Labour Relations and Employment Board, the Canadian Human Rights Tribunal, the Federal Court, the Federal Court of Appeal, and the Supreme Court of Canada. We are experienced in multi-stakeholder negotiations, public relations, and the need to work cooperatively and in a straightforward manner with all involved. Members of our firm, at all levels, are accustomed to dealing with the sensitivities associated with the representation of high-profile, closely scrutinized government organizations and we are regularly retained as counsel on leading-edge or novel issues facing these organizations.
We understand the dynamics that impact the federal sector and we are sensitive to the unique obligations and accountability that applies to federally regulated employers. To learn how we can assist your organization, contact us and ask to speak with a Hicks Morley lawyer.
Editor’s Note: This post has been updated from its original version.
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