On June 13, 2019, the federal government proclaimed September 1, 2019 as the coming into force date for a number of amendments to the Canada Labour Code [Code]. The amendments were enacted by two pieces of federal legislation enacted since 2017, 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”). This legislative announcement means that federally regulated employers will have to prepare themselves to comply with new, expanded employment standards by the end of summer.
A key point to keep in mind when considering the impact of this legislative announcement is that the Code does not apply to all employers. Most Ontario employers are subject to Ontario employment laws, while the Code only applies to certain industries that fall under federal jurisdiction, such as international and interprovincial transportation, telecommunications and broadcasting, and banks. Employers that do not operate in one of these federally regulated industries are likely not bound by the Code, and thus not impacted by the changes described below.
Amendments to the Canada Labour Code Enacted by Bill C-63
Bill C-63, enacted on December 14, 2017, makes changes that focus on modernizing the Code by introducing flexible workplace arrangements, improving predictability of work schedules for employees, introducing changes to overtime, and enhancing leave entitlements, among other changes.
Flexible Work Arrangements
As of September 1, 2019, employees will have the right to request flexible work arrangements regarding their hours of work, location of work, and work schedule. Employees must make requests for flexible work arrangements in writing and employers must approve the requests unless there are legitimate operational reasons for not doing so. Employers may only refuse requests on one or more of the following the grounds:
- the employer would incur additional costs as a result of the requested change that would be a burden;
- the flexible work arrangement would detrimentally impact the quality or quantity of work or the employer’s ability to meet customer demands;
- the employer would be unable to reorganize work among existing employees or recruit additional employees to accommodate the request; and
- there would be insufficient work available to the employee if the request was granted.
Work Schedule Predictability and Overtime
Starting on September 1, 2019, an employer must give an employee 24 hours’ written notice of a shift change or extension, except in certain exceptional circumstances. Employees will also be able to refuse overtime to carry out family responsibilities related to healthcare or education of certain family members, provided the employees have first taken reasonable steps to address the family responsibilities without refusing overtime but must carry out those family responsibilities during an overtime period despite having taken those steps.
Bill C-63 also allows employers and employees to agree that an employee may be granted 1.5 hours of paid time off for each hour of overtime worked, in lieu of overtime pay. Such overtime agreements are subject to specific conditions and must be made in writing.
Enhanced Leave Entitlements
As of September 1, 2019, employees will be eligible for new leaves for victims of family violence and for traditional Aboriginal practices, as well as an extended bereavement leave.
- Leave for Victims of Family Violence: An employee who is the victim of family violence or is the parent of a child who is the victim of family violence will be entitled to take 10 days of leave per year—of which 5 are paid—to seek medical attention, obtain psychological or professional counselling, to seek legal assistance or participate in a legal proceeding, to obtain services from an organization offering assistance to victims of family violence, or to relocate temporarily or permanently. An employer may request supporting documentation from employees taking this leave within 15 days of the employee returning to work.
- Leave for Traditional Aboriginal Practices: An Aboriginal employee, defined as Indian, Inuit, or Métis, may take up to 5 unpaid days per calendar year to engage in traditional Aboriginal practices such as hunting, fishing, and harvesting. This leave may only be taken after an employee has completed 3 months of service. An employer has the right to request documentation that shows the employee is an Aboriginal person within 15 days of the employee returning to work, only if it is reasonably practicable for the employee to obtain and provide it.
- Bereavement Leave: Employees will be entitled to 5 days of bereavement leave for the passing of a family member instead of the prior 3 days; however, only the first 3 days must be paid. The leave must be taken within 6 weeks of the funeral, burial, or memorial service, whichever is latest.
Amendments to the Canada Labour Code Enacted by Bill C-86
Code amendments enacted by Bill C-86 will also come into force on September 1, 2019. Our recent blog provides an in-depth examination of how Bill C-86 will amend the Code. Among the notable changes enacted by Bill C-86 are amendments to hours of work, leave, and vacation entitlements, among other changes.
Hours of Work Amendments
As of September 1, 2019, employers will have to abide by new scheduling requirements.
- Notice of Schedule: Employers will have to provide employees with at least 96 hours’ notice before implementing a new schedule. Employees will be entitled to refuse to work any shifts scheduled with less than 96 hours’ notice without fear of reprisal.
- Breaks: Employees will be entitled to 30-minute breaks for each 5 hours of consecutive work performed. These breaks are unpaid; however, the employee must be paid for these breaks if the employer requires that the employee be at their disposal during the break period.
- Minimum Rest Periods: Employees will be entitled to at least 8 hours of rest between each shift.
- Medical and Nursing Breaks: Employees will be entitled to unpaid breaks necessary for medical reasons and, for employees who are nursing, to nurse or express breast milk.
As of September 1, 2019, employees will be entitled to personal leave, medical leave, and court and jury duty leave without any requirement to be employed for a minimum period before taking the leaves, as detailed below.
- Personal Leave: Employees will be entitled to 5 days of “Personal Leave”—of which 3 are paid for employees who have completed 3 consecutive months of continuous employment—for personal illness or injury, healthcare responsibilities related to certain family members, education-related responsibilities related to certain family members under 18 years of age, personal or familial urgent matters, and to attend citizenship ceremonies.
- Medical Leave: The former “Sick Leave” entitlement will be changed to “Medical Leave” and expanded such that it can be used for personal illness or injury or for organ or tissue donation and medical appointments. The entitlement will remain fixed at 17 weeks. Employers may request a certificate from a health practitioner for medical leaves of more than 3 days.
- Court of Jury Duty Leave: Employees will be entitled to unlimited unpaid leave for court or jury duty.
Amendments to Vacation
As of September 1, 2019, employees will have increased vacation time and pay entitlements. These entitlements are as follows:
- 2 weeks of vacation time after 1 year of service and 4% vacation pay;
- 3 weeks of vacation time after 5 years of service and 6% vacation pay; and
- 4 weeks of vacation time after 10 years of service and 8% vacation pay.
Update Your Policies!
Federally regulated employers will have to be prepared for an overhaul of employment standards as of September 1, 2019. Federally regulated employers should update their policies and ensure their practices with respect to various employment standards are in compliance with recent legislative amendments to pre-empt the risks of falling into non-compliance, including of potentially steep fines. For federally regulated employers that are impacted by these changes, the summer is ripe to update workplace policies to ensure compliance with the Code amendments.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.