Canada: Reminder For Federally Regulated Employers: Sweeping Changes To Canada Labour Code Coming September 1, 2019

Part III of the Canada Labour Code (Code) and its accompanying regulations, which provide labour standards for federally regulated employers, are scheduled to undergo significant changes pursuant to the coming into force of certain provisions of Bill C-86, the Budget Implementation Act, 2018, No. 2 (Bill C-86), and Bill C-63, the Budget Implementation Act, 2017, No. 2 (Bill C-63).

The changes introduced by Bills C-86 and C-63 will enter into force as early as September 1, 2019. Consequently, employers should review their current policies for compliance with the new standards.

The key changes include:

• Hours of Work
• Flexible Work Arrangements
• Leaves of Absence
• Health Care Practitioners
• Continuous Employment
• Statutory Holiday Pay
• Vacation Entitlements
• Equal Pay
• Temporary Help Agencies
• Reimbursements
• Termination
• Misclassification and Burden of Proof
• Age of Employment

The following changes will be introduced on September 1, 2019:

HOURS OF WORK

Unpaid Breaks: Subject to certain exceptions, employees are entitled to an unpaid break of at least 30 minutes for every five consecutive hours of work.

Medical and Nursing Break: Employees are entitled to unpaid breaks that are necessary for medical reasons and nursing.

Rest Periods: Subject to certain exceptions, employees are entitled to a rest period of at least eight consecutive hours between work periods.

Notice of Work Schedule: Employers must provide employees with notice of their work schedule at least 96 hours (i.e., four days) before the work period. In the absence of such notice, an employee may refuse to work, subject to certain exceptions.

Note of Schedule Change: Subject to certain prescribed exceptions, employers must give an employee at least 24 hours advance written notice of a shift change.

FLEXIBLE WORK ARRANGEMENTS

Employees with at least six months of continuous service may now request a change in working conditions, including a change to their work schedule, work location or such other conditions as prescribed by regulation. In the event such a request, employers must respond in writing within 30 days granting or denying the request and include written reasons for refusing the requested change or for not granting a part of it.

LEAVES OF ABSENCE

New Leaves of Absence: The amendments introduce several new types of leaves for employees, including introduction of paid leave in certain circumstances:

1. Personal Leave: Employees are entitled to a personal leave of up to five days in every calendar year. After three months of continuous employment, the first three days of leave are to be paid at the employee's regular rate of wages. Personal leave is granted for treating illness or injury, carrying out responsibilities related to the health or care of any family member, carrying out responsibilities related to the education of any family member who is under 18 years of age, addressing any urgent matter concerning themselves or their family members, attending their citizenship ceremony or any other reason prescribed by regulation.
2. Leave for Victims of Family Violence: Employees who are victims of family violence or who are parents to a child who is a victim of family violence are entitled to a leave of up to 10 days in every calendar year. After three consecutive months of employment, the first five days of leave are paid at the employee's regular rate of wages. The leave serves to enable the employee to seek medical attention for themselves or their child, to obtain services from an organization that provides services to victims of family violence, to obtain psychological or other professional counselling, to relocate temporarily or permanently, to seek legal or law enforcement assistance or to prepare for, or participate in, any civil or criminal proceeding or to take any measures prescribed by regulation.

3. Court or Jury Duty Leave: Employees are entitled to a leave to attend court to serve as a witness, act as a juror or to participate in the jury selection process. There is no limitation on the length of such leave. Previously, this requirement existed under provincial legislation only.

4. Traditional Aboriginal Practices Leave: Employees are entitled to up to five days per calendar year — this leave is restricted to Aboriginal persons (defined as Indian, Inuit or Métis) who have completed at least three consecutive months of continuous service. The leave is for the purpose of engaging in defined traditional Aboriginal practices.

Changes to Pre-Existing Leaves of Absence: The following leave entitlements are amended:

1. Shared Parental and Maternity Leave: Where multiple employees are taking parental leave in respect of the same birth or adoption, the aggregate amount of leave has increased by eight weeks and therefore, must not exceed 71 weeks. Where multiple employees are taking both maternity and parental leave in respect of the same birth, the aggregate amount of leave has increased by eight weeks, and therefore must not exceed 86 weeks. These changes came into force earlier this year in March 2019.
2. Medical Leave: Current sick leave provisions will be classified as medical leave. Employees are entitled to a medical leave of absence, regardless of the length of their service. The leave may be taken for up to 17 weeks as a result of personal illness or injury, organ or tissue donation, or medical appointments during working hours.
3. Bereavement Leave: Bereavement leave entitlement is extended to add two additional unpaid days to the existing three paid days leave.
4. Six Month Minimum Length of Service Requirement Eliminated: Employees are entitled to maternity leave, parental leave, leave related to critical illness and leave related to death or disappearance of a child, regardless of their length of service.

HEALTH CARE PRACTITIONERS

Medical documentation or certificates to support leaves of absences can be provided by a broader class of health care practitioners, rather than solely a medical practitioner.

CONTINUOUS EMPLOYMENT

Subject to certain exceptions, the continuous employment provisions in the Code will be expanded to include continuous employment where an employee is employed in connection with the operation of a work, undertaking, or business, both before and after a lease or transfer, if the work, undertaking, or business is federal work or becomes federal work due to the lease or transfer. This provision also applies to work being transferred via a retendering process.

STATUTORY HOLIDAY PAY

Employees are no longer required to work for an employer for 30 days to obtain holiday pay. Entitlement to holiday pay exists immediately upon employment.

VACATION ENTITLEMENTS

Employees are entitled to the following increased annual vacation with pay:

The following changes will be introduced on a date yet to be determined:

EQUAL PAY

Several amendments include provisions related to equal pay:

Rate of Wages: Employees working in the same industrial establishment, performing substantially the same kind of work, requiring the same skill, effort and responsibility, under similar conditions, are entitled to an equal wage rate regardless of employment status. This protection extends to seasonal, temporary, part-time, casual and temporary help agency employees. Exceptions to equal pay apply where the differential pay is due to:

• Seniority
• Merit
• The quantity or quality of each employee's production.

An employee's wage rate cannot be reduced to comply with this section.

Request for Review: Employees who believe their wage rate does not comply with the equal pay provision may submit a written request to their employer for a wage rate review. The employer must conduct a review within 90 days of receiving the request and provide a written response. Employers are prohibited from disciplining employees for such requests.

Notice of Opportunities: Employers who normally inform employees of employment or promotion opportunities in writing must provide such notice to all employees regardless of employment status.

TEMPORARY HELP AGENCIES

Temporary help agencies are prohibited from charging certain fees and preventing employees from establishing employment relationships with a client. Employees of temporary help agencies are entitled to equal pay and are permitted to request a review of their wage rate.

REIMBURSEMENTS

Employers will now be required to reimburse employees for reasonable work-related expenses, unless prescribed by regulation, a collective agreement, or any other written agreement.

TERMINATION

Individual Termination: Employees will now be entitled to the following lengthier notice periods for individual termination:

Group Termination of Employment: Group termination of employment refers to the termination of a group of 50 or more employees, either simultaneously or within any four-week period. In cases of group termination, employers are required to give the Minister of Labour 16 weeks' notice. Bill C-86 amendments also require employers to provide any trade union representing the employees, or if the employees are not represented by a trade union, the group of affected employees, with immediate notification of the group termination. Additionally, each employee terminated during the 16-week group notice period is entitled to eight weeks' individual notice.

MISCLASSIFICATION AND BURDEN OF PROOF

The Code will now include a specific provision prohibiting employers from misclassifying employees as independent contractors. Where a breach of the Code is alleged, the employer will carry the burden of proof in establishing that the complainant is not an employee.

AGE OF EMPLOYMENT

Subject to certain exceptions, the threshold age of employment is raised from 17 to 18 years of age.

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