By Jamila Bolahood, Firm:  Mathews, Dinsdale & Clark LLP

From 1 September 2019, new provisions in the Canada Labour Code will change employees’ entitlement to continuity of employment, breaks and rest periods and various types of leave and vacation, among other changes. This article provides details.

Certain long-awaited amendments to the Canada Labour Code (the ‘Code’) are set to come into force on 1 September 2019. These changes come as a result of two significant pieces of legislation, which aim to modernise the Code:

  • Bill C-63, Budget Implementation Act, 2017, No. 2, which received Royal Assent December 2017;
  • Bill C-86, Budget Implementation Act, 2018, No. 2, which received Royal Assent December 2018.

These Bills provide for various amendments to Part III of the Code, some of which will come into force on 1 September 12019. Federally regulated employers subject to the Code should be aware of these amendments that will soon be law, the most significant of which are described below.

Meal breaks and rest periods

Employers will be required to provide an unpaid break of at least 30 minutes during every period of five consecutive hours of work, with certain exceptions. Further, the amendments will provide a rest period of at least eight consecutive hours between work periods or shifts, with certain exceptions.

Continuity of employment

If a work, undertaking, or business, or any part of a work, undertaking, or business, is leased or transferred by sale, merger, or otherwise, the employment of the employee will be deemed to be continuous, notwithstanding the transfer. This will apply in situations where the transfer has been from a provincially regulated employer to a federally regulated employer, as well as when work is being transferred through a retendering process of contracts where a contractor’s employees perform services for a different institution or employer. Mandating continuity of employment where there is a transfer from one contractor to another and from a provincial regulated employer to a federally related employer is both new and significant.

Scheduling

Employers will be required to provide employees with their work schedule in writing at least 96 hours (four full days) before the start of the first shift under that schedule. Where 96 hours of notice has not been given, employees will be entitled to refuse the work beginning within 96 hours from the time that the schedule is provided, subject to certain exceptions, including conflicting terms in a collective agreement. Employers will also be prohibited from taking reprisals against employees for such refusals.

Shift changes

Employers will be required to provide 24 hours’ notice in writing if they are changing or adding a shift to an employee’s schedule, subject to certain exceptions.

Refusal of overtime

Employees will be entitled to refuse to work overtime in order to carry out family responsibilities as specified and subject to certain exceptions.

Breaks for medical reasons or nursing

Employees will be provided with unpaid breaks that are necessary for medical reasons. If requested by the employer, employees will be required to provide a certificate issued by a health care practitioner setting out the length and frequency of the required breaks. Employees will also be entitled to any breaks necessary to nurse or extract breast milk.

Leaves of absence

The Bill will eliminate service requirements for parental leave, maternity leave, leave related to critical illness, and leave related to death or disappearance. A reduced standard of medical documentation in support of certain leaves has also been implemented; employees will be entitled to provide medical documentation from a defined group of ‘health care practitioners’ rather than ‘qualified medical practitioners’. New leave provisions are also being introduced, set out below.

Leave for victims of family violence

Up to five days of paid leave each calendar year, after 3 months of continuous employment.

Leave for court or jury duty

Unspecified number of days, the leave will be for employees to attend at court to: act as a witness, act as a juror, or participate in the jury selection process.

Medical leave

The current sick leave provisions will be converted to medical leave, which will cover up to 17 weeks of absence as a result of personal illness or injury, organ or tissue donation, or medical appointments during working hours.

Personal leave

Up to five days each calendar year, which will include three paid days after three months of continuous employment. The specified reasons for personal leave will include: reasons related to personal illness, carrying out responsibilities related to the health or other urgent matters involving family members, education of family members under 18, attendance at citizenship ceremonies, and for any other reason prescribed by regulation.

Traditional Aboriginal practices

Up to five days each calendar year for an employee who is an Aboriginal person to engage in traditional Aboriginal practices including hunting, fishing, harvesting and any practice prescribed by regulation, after three months of continuous employment.

Bereavement leave

Up to five days each calendar year. The entitlement will begin on the day on which the death of the immediate family member occurs, and last up to six weeks after the latest day on which any funeral, burial or memorial service occurs. After three months of continuous employment, the first three days are paid.

Vacation

Employees who complete ten consecutive years of employment with the same employer will be entitled to four weeks of vacation time (8% vacation pay). Employees who complete five consecutive years of employment with the same employer will be entitled to three weeks of vacation time (6% vacation pay). Previously the right to 3 weeks of vacation was gained after six consecutive years of employment. Employees who complete one year of employment will be entitled to two weeks (4% vacation pay).

Flexible work hours arrangements

Employees will have the right to request a change to certain terms and conditions of employment (number of hours, work schedule, location of work, and any other terms and conditions that are prescribed by the regulation), after six months’ continuous employment. The employer will have the option to grant the request, fully or in part, or refuse the request on certain grounds. The employer will have to respond to the request in writing, and provide reasons, within 30 days.

General holidays substitution

An employer will be entitled to substitute another day for a general holiday, subject to approval in writing from the affected employee, or by 70% of the affected employees. Posted notice of any change must be at least 30 days prior.

Holiday Pay

The minimum length of service requirement for holiday pay will be eliminated. Holiday pay will be at least equal to 1/20th of the employee’s wages (excluding overtime earnings) for the four-week period immediately preceding the week in which the holiday occurs.

Other provisions

Corresponding amendments to the regulations made under the Code have been made to complement these amendments that also will come into effect on 1 September 2019. In particular there is a new poster listing employee rights that must be posted in workplaces.

Bill C-63 and C-86 contain a number of additional amendments to the Code, which are set to come into force on a day to be fixed by order of the Governor in Council, but that day will not be before 1 September 2019, and has yet to be announced. Of note, there are amendments addressing the termination of employment, as well as equal pay.

It is important for federally regulated employers to be aware of these amendments and when they become law, in order to understand and comply with the Code.