Upcoming changes to medical leave obligations under the Canada Labour Code

On November 26, 2021, Parliament tabled An Act to amend the Criminal Code and the Labour Code (“Bill C-3”), which proposed significant changes to the federal Canada Labour Code (the “Code”). On December 17, 2021, Bill C-3 received royal assent. Bill C-3 was later amended by An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measures (“Bill C-19”), which received royal assent on June 23, 2022.

As a result of the recent amendments to the Code made through Bill C-3 and amended by Bill C-19, federally regulated employers to which Part III of the Code applies will be required to provide certain employees with paid medical leave. The legislated amendments also made changes to the personal leave provisions. These changes are described further below.

New paid medical leave provisions

As a result of the combined effect of Bill C-3 and Bill C-19, on a day to be fixed by order of the Governor in Council, but no later than December 1, 2022, federally regulated employers will be required to provide employees with up to ten days of paid medical leave. Employees would earn paid medical leave as follows:

• After completing 30 days of continuous employment with an employer, employees would earn three days of medical leave of absence with pay.
• Following the period of 30 days referred to above, at the beginning of each month after completing one month of continuous employment with the employer, employees would earn one day of medical leave of absence with pay, up to ten days of medical leave of absence with pay in a calendar year.
• Subject to the regulations, unused days of medical leave of absence with pay in a calendar year are to be carried forward to January 1 of the following calendar year and will be included in the maximum number of days that can be earned in that following calendar year.

Employers may require employees who have taken a medical leave of absence of at least five consecutive days to provide a certificate issued by a health care practitioner certifying that the employees were incapable of working for the period of their medical leave of absence. The certificate would have to be requested in writing and no later than 15 days after the employees return to work.

While Bill C-19 includes an amendment that would have prevented the application of the new paid medical leave requirements to employers with less than 100 employees, that amendment is not scheduled to come into force on December 1, 2022. As such, for the time being, smaller employers will also be required to provide their employees with paid medical leave. The federal government could restrict the application of the paid medical leave requirement to larger employers with 100 or more employees on a future date, if it so wishes, by order of the Governor in Council.

What happens to the other medical leave provisions?

Before Bills C-3 and C-19, section 206.6(1)(a) of the Code provided for five days of unpaid personal leave in every calendar year for personal illness or injury. That subsection will be repealed on a day to be fixed by order of the Governor in Council, but no later than December 1, 2022.

After the repeal, and in spite of the introduction of the new paid medical leave requirement, employees will continue to be entitled to a leave of absence of up to five days in every calendar year for the following:

• carrying out responsibilities related to the health or care of any of their family members;
• carrying out responsibilities related to the education of any of their family members who are under 18 years of age;
• addressing any urgent matter concerning themselves or their family members;
• attending their citizenship ceremony under the Citizenship Act; and
• any other reason prescribed by regulation.

In addition, the entitlement under s. 239 (1) of the Code to a medical leave of absence from employment for up to 17 weeks as a result of (a) personal illness or injury, (b) organ or tissue donation, or (c) medical appointments during working hours, remains unchanged. The entitlement under s. 239 (1.1) of the Code to a medical leave of absence from employment for up to 16 weeks as a result of quarantine also remains unchanged.

Proposed regulations amending certain regulations made under the Canada Labour Code (Medical Leave with Pay)

The proposed Regulations Amending Certain Regulations Made Under the Canada Labour Code (Medical Leave with Pay) (the “Proposed Medical Leave Regulations”) were published for comment by the federal government on July 16, 2022. The comment period recently closed.

The Proposed Medical Leave Regulations are intended to support the implementation of the paid medical leave provisions by clarifying the application of the provisions to certain classes of employees, making technical amendments, and ensuring that the Administrative Monetary Penalties (“AMP”) regime described further below can be used to promote compliance and enforcement of the provisions.

Unless the Medical Leave Regulations are significantly amended as a result of public comment, federally regulated employers to which the new paid medical leave provisions apply can expect the following:

• The Proposed Medical Leave Regulations would apply the definition of “regular rate of wages” in section 17 of the Canada Labour Standards Regulations to paid medical leave, and would also provide clarity on the “regular rate of wages” for an employee whose hours of work differ from day to day or who is paid on a basis other than time (e.g. commission).
• The Proposed Medical Leave Regulations would require all employers to keep the following records related to each period of medical leave with pay:
  • the dates of commencement and termination of the leave;
  • the year of employment in respect of which the leave was earned;
  • the number of days of leave carried over from a previous year;
  • a copy of any written request for a medical certificate made by an employer; and
  • a copy of any medical certificate submitted by an employee.
• The Proposed Medical Leave Regulations would also modify the paid medical leave provisions in the Code to require employers who use an entitlement year other than a calendar year to calculate the annual vacation entitlements of their employees to use that same entitlement year for the purposes of the paid medical leave provisions.

It is likely that the Proposed Medical Leave Regulations will be implemented prior to December 1, 2022. Therefore, we recommend that employers review the final text of the Proposed Medical Leave Regulations once issued.

Changes to Administrative Monetary Penalties under the Code

On January 1, 2021, the new Part IV (Administrative Monetary Penalties) of the Code was brought into force. The Administrative Monetary Penalties (Canada Labour Code) Regulations (“AMP Regulations”) designate and classify violations of provisions under the Code and its regulations, making them subject to an AMP in cases of non-compliance. On March 4, 2022, the AMP Regulations were amended by the Regulations Amending Certain Regulations Made Under the Canada Labour Code (SOR/2022-41).

The Labour Program issues AMPs against employers. AMPs are financial deterrents to non-compliance with either the Code or its regulations. Generally, AMPs are only issued against an employer after voluntary compliance measures are exhausted and non-compliance continues to persist. In narrow circumstances in which an employer’s non-compliance is particularly severe, the Labour Program may issue an AMP earlier in the compliance and enforcement process. After the Labour Program issues an AMP, they will publish the name of the employer who received an AMP. If the employer commits another violation or continues the impugned violation, then the Labour Program may issue an AMP for each day of post-AMP non-compliance.

Depending on the outcome of the public consultations that have recently concluded, the Proposed Medical Leave Regulations, once published, will introduce further amendments to the AMP Regulations. In particular, unless the text of the Proposed Medical Leave Regulations is significantly changed, the Proposed Medical Leave Regulations would classify non-compliance with the paid medical leave provisions as violations for the purposes of the AMPs regime to promote enforcement of the paid medical leave provisions.

Update [December 1, 2022]

Effective December 1, 2022, the new medical leave with pay provisions under Part III of the Canada Labour Code and the related regulations came into force. 

To assist employers with the implementation of these new requirements, the federal Labour Program issued two new Interpretations, Policies and Guidelines in respect of the new medical leave with pay entitlements: IPG-118 and IPG-119. 

IPG-118 provides further clarifications on further guidance on medical leave with pay. IPG-119 provides guidance on the Labour Program’s view of how existing benefits offered by an employer under a contract of employment or a collective agreement will interact with the medical leave with pay entitlements established in the Canada Labour Code.

Conclusion

In light of these changes, federally regulated employers to which Part III of the Code applies should take the necessary steps to update their leave policies and, if necessary, their employment agreement templates.

For further information please contact any of the members of the DLA Piper Canadian Employment and Labour Law Service Group listed here.

This article provides only general information about legal issues and developments, and is not intended to provide specific legal advice. Please see our disclaimer for more details.