On April 6, 2018, we published a blog post that summarized the principal proposed amendments to an Act Respecting Labour Standards (“ARLS”), encompassed in Bill 176, An Act to amend the Act respecting labour standards and other legislative provisions mainly to facilitate family-work balance.
On June 12, 2018, Bill 176 (hereinafter the “Bill”) was passed and assented by the National Assembly. Since it includes numerous important amendments and differs from the version that was originally presented, we have reproduced certain provisions which may be of interest, following 8 general themes:
- Work-family balance
- Paid leaves
- Unforeseen absences
- Differential treatment
- Prevention of psychological and sexual harassment
- Regulation of personnel placement agencies and recruitment agencies
- Directors and officers liability
- Other interesting proposals
It should be noted that every provision entered into force on June 12, 2018, subject to a few exceptions. These exceptions are specified in this blog post, when applicable.
I. Work-family balance
- (NEW) Staggered working hours: Employers and employees may agree on the staggering of working hours on a basis other than a weekly basis, without the authorization of the Commission des normes, de l’équité, de la santé et de la sécurité du travail (the “Commission”), subject to the following conditions: (1) the agreement is evidenced in writing and the hours are staggered over a maximum period of 4 weeks; (2) a work week may not exceed the standard provided for in the law or the regulations by more than 10 hours; (3) the employee or the employer may terminate the agreement following a notice given at least 2 weeks prior to the scheduled termination of the staggering agreed upon.
- (AMENDMENT) Refusal to work additional hours: Employees may currently refuse to work more than 4 hours in addition to their regular daily working hours. Starting on January 1st, 2019, the Bill will reduce this to 2 hours.
- (NEW) The Bill also provides that as of January 1st, 2019, employees will be able to refuse to work if they were not informed at least 5 days in advance that they would be required to work, unless the nature of their duties requires them to remain available or if their services are required within the limits set out in section 59.0.1(1) ARLS. Concretely, the employer will therefore have to make the work schedule available at least five days in advance.
- (AMENDMENT) 10 days of family leave: The first 2 days of the 10 days of absence per year to which employees are entitled in order to fulfil obligations relating to the care, health, or education of their child or the child of their spouse will be paid from January 1st, 2019, as soon as the employee is credited with 3 months of uninterrupted service, even if he has been absent previously. However, the employee is not entitled to this payment if he already received, during the same year, 2 days paid, under section 79.1 or section 79.7 ARLS.
Since the Bill was passed, family members include “a relative or a person for whom the employee acts as a caregiver, as attested by a professional working in the health and social services sector governed by the Professional Code (Chapter C-26)”.
Finally, as of January 1st, 2019, employers will be able to request that employees furnish a document attesting to the reasons for their absence, if such request is warranted by circumstances, for instance, by the duration of the absence.
II. Paid leave
- (NEW) Payment or compensatory holiday: If a holiday does not coincide with an employee’s regular work schedule, employers must pay the indemnity set out in section 62 ARLS or grant a compensatory holiday of one day on an agreed-upon date. It is the employer’s choice to choose between a payment or a compensatory holiday. This rule already existed in the case of an employee on annual leave.
- (AMENDMENT) Annual leave: Currently, employees must be credited with 5 years of uninterrupted service to be entitled to an annual leave of 3 consecutive weeks. Beginning on January 1st, 2019, this requirement will be reduced to 3 years.
- (AMENDMENT) Payment of indemnity for annual leave: The payment of this indemnity may now be made before the beginning of the leave or in the manner applicable for the regular payment of the employee’s wages.
- When it is warranted by the seasonal or otherwise intermittent activities of an employer (i.e. not only farm workers), employers may add the indemnity to the worker’s wage, paid in the same manner as his wages.
III. Unforeseen absence
- (NEW) Absence owing to domestic violence: Employees victim of domestic violence or sexual violence are also entitled to the leave of 26 weeks over a period of 12 months as provided by section 79.1 ARLS.
- (AMENDMENT) Requirements for absence owing to sickness under section 79.1: Currently, employees must be credited with 3 months of uninterrupted service to take advantage of section 79.1 ARLS (26 weeks over a period of 12 months), and the entire absence is without pay. From January 1st, 2019, this 3-month requirement will be removed (i.e. all employees will be eligible).
- (AMENDMENT) Persons covered by an absence for family reasons: The definition of “relative” was amended to include “the child, father, mother, brother, sister and grandparents of the employee or the employee’s spouse as well as those persons’ spouses, their children and their children’s spouses.” The following individuals are also considered an employee’s relative: (1) a person having acted as a foster family for the employee or the employee’s spouse; (2) a child for whom the employee or the employee’s spouse has acted, or is acting, as a foster family; (3) a tutor or curator of the employee or the employee’s spouse or a person under the tutorship or curatorship of the employee or the employee’s spouse; (4) an incapable person having designated the employee or the employee’s spouse as mandatary; and (5) any other person in respect of whom the employee is entitled to benefits under an act for the assistance and care the employee provides owing to the person’s state of health.
- (ADDITION) Remunerated absence : As of January 1st, 2019, the first 2 days of annual absence owing to sickness under section 79.1 ARLS will be paid to employees credited with 3 months of uninterrupted service. However, an employee will not be entitled to this payment if he already received, during the same year, 2 days paid, under section 79.1 or section 79.7 ARLS.
- (AMENDMENT) Absence owing to serious circumstances: Several amendments to the length of an absence for family reasons (illnesses or accidents, disappearance of a minor child, death as a result of a criminal offence or a suicide, etc.) were passed, generally increasing the permitted absence from the current 52 weeks to 104 weeks.
- In particular, an employee whose minor child dies is entitled to an absence of maximum 104 weeks, at the most, in the context of this death, whether or not it results from a criminal offence, a serious illness, or suicide.
- (AMENDMENT) Absence owing to death: Currently, employees may be absent from work for 1 paid day and 4 unpaid days in the event of the death or funeral of certain immediate family members. Beginning on January 1st, 2019, employees will be entitled to 2 paid days and 3 unpaid days off work.
- (MODIFICATION) Removal of the necessity of continued service: Through the application of section 79.16 ARLS, authorized absences provided for under sections 79.8 to 79.12 ARLS (accidents, diseases and serious reasons, criminal offences, disappearance, suicide and death) will be, as of January 1, 2019, available to all employees since the 3-month requirement will be removed.
- (AMENDMENT) Remunerated absence for birth of a child: Currently, employees credited with 60 days of uninterrupted service are entitled to take 2 paid days and 3 unpaid days off work for the birth of a child, the adoption of a child, or the termination of pregnancy in or after the 20th week. Beginning on January 1st, 2019, this 60-day requirement will be eliminated, such that all employees will be eligible.
IV. Differential treatment
- (NEW) Equivalent rate of wage: From January 1st, 2019, employers may not remunerate an employee at a lower rate of wage than that granted to its other employees of the same establishment solely because of the employee’s employment status, for instance because the employee came from a placement agency or usually works fewer hours each week. The current exception for employees who earn more than twice the minimum wage will be eliminated.
- (NEW) No distinction on the basis of hiring date: Distinction on the basis of a hiring date, in relation to pension plans or other employee benefits, that affects employees performing the same tasks in the same establishment is now prohibited. However, distinctions on the basis of a hiring date anterior to June 11, 2018, will not be subject to this new provision.
- (NEW) Section concerning recourses against certain differences in treatment (main steps)
- Employee files a written complaint within 12 months of the distinction becoming known to the employee,
- Inquiry by the Commission,
- If no settlement is reached between the parties and the Commission agrees to pursue the complaint, the complaint is referred to the Administrative Labour Tribunal (the “ALT”),
- The Commission may represent an employee before the ALT.
V. Prevention of psychological and sexual harassment
- (AMENDMENT) Definition of psychological harassment: Sexual harassment is now included in the definition of psychological harassment under section 81.18 ARLS: “For greater certainty, psychological harassment includes such behaviour in the form of such verbal comments, actions or gestures of a sexual nature”.
- (NEW) Psychological harassment prevention and complaint processing policy: From January 1st, 2019, all employers will be required to adopt a psychological harassment prevention and complaint processing policy and to make it available to their employees.
- (NEW) Complaint for psychological harassment: With the consent of the employee, the Commission refers to the Commission des droits de la personne et des droits de la jeunesse any complaint concerning discriminatory behaviour filed in conformity with the section concerning recourses in case of psychological harassment.
- (AMENDMENT) Complaint for psychological harassment: Previously, employees had 90 days following the last manifestation of psychological harassment to file a complaint. Employees now have 2 years to do so.
VI. Regulation of personnel placement agencies and temporary foreign workers recruitment agencies
- (NEW) Division regarding personnel placement agencies and temporary foreign workers recruitment agencies (highlights)
- These agencies must now hold a licence delivered by the Commission.
- No client enterprise may retain the services of an agency that does not hold a licence.
- A set of obligations and prohibitions apply to employers that hire temporary foreign workers. Notably, employers may not require a temporary foreign worker to surrender custody of his personal documents or goods, or require the payment of expenses associated with his recruitment, other than those authorized by a Canadian recruitment program.
- The agency and the client enterprise are solidarily liable for pecuniary obligations toward the employee.
- (NEW) Equivalent rate of wage: No personnel placement agency may remunerate an employee at a lower rate of wage than that granted to the employees of the client enterprise who perform the same tasks in the same establishment solely because of the employee’s employment status.
- (NEW) Penalties for the operation or use of an agency that does not hold a licence: Penalties are $600 to $6,000 (first offence) and $1,200 to $12,000 (subsequent offence) on anyone who operates or retains the services of an agency that does not hold a licence.
VII. Directors and officers liability
- (AMENDMENT) Directors and officers liability: The liability of directors and officers in the context of offences under the ARLS is now engaged and when an offence is committed, they are presumed to have committed it themselves. However, this section expressly provides for the defence of due diligence.
VIII. Other interesting proposals
- (NEW) ARLS exclusion: Athletes whose membership in a sports team is conditional on their continued participation in an academic program are excluded from the scope of the ARLS.
- (AMENDMENT) Terms for payment of wages: Payment of wages by bank transfer no longer requires a written agreement or a decree.
We invite you to contact a member of our labour and employment team with any questions about the amendments to an Act Respecting Labour Standards or for any assistance in redacting or reviewing your policies and employee handbooks.