Last November 27th, the Minister of Labour tabled Bill 58 in the National Assembly. This Bill entitled An Act to amend the Act respecting labour standards with regard to absences and leave was assented to and came into force on December 18, 2007. The new provisions entitle persons hard hit by tragic events (suicide, disappearance or criminal act) to be absent from work for periods ranging from 52 to 104 weeks, as the case may be. The following text highlights the changes that were made.
Absence from work for up to 104 weeks without pay if the employee suffers serious bodily injury resulting from a criminal offence.
Section 79.1 L.S.A. is amended to enable an employee to be absent from work for a maximum period of 104 weeks if he or she suffers serious bodily injury during or resulting directly from a criminal offence that renders the employee unable to hold his or her regular position.
New Sections 79.1.1 and 79.1.2 L.S.A. outline the circumstances under which this absence can be taken. The main elements may be summarized as follows:
- The circumstances surrounding the incident must infer that the injury suffered by the employee is probably the result of the criminal offence (causal link);
- The employee's injury must have been suffered under the following circumstances, namely:
- while lawfully arresting or attempting to arrest an offender or suspected offender or assisting a peace officer making an arrest; or
- while lawfully preventing or attempting to prevent the commission of an offence or suspected offence, or assisting a peace officer who is preventing or attempting to prevent the commission of an offence or suspected offence.
In the section on absences and leave for family or parental reasons, Sections 79.9 to 79.16 were also added to the L.S.A. The sections provide for the following new absences:
Absence from work for up to 104 weeks without pay if the employee must stay with his or her minor child who suffered serious bodily injury as a result of a criminal offence.
Absence from work for up to 104 weeks without pay if the employee's spouse or child dies as a result of a criminal offence.
New Section 79.9 L.S.A. provides that an employee will be entitled to an extension of the normal period of absence under Section 79.8 (i.e., 12 weeks over a period of 12 months), which ends not later than 104 weeks after the beginning of that period, if he or she must stay with his or her minor child who suffered serious bodily injury during or resulting directly from a criminal offence that renders the child unable to carry on regular activities.
Pursuant to new Section 79.12 L.S.A., an employee may also be absent from work for a period of not more than 104 weeks if the death of the employee's spouse or child occurs during or results directly from a criminal offence.
Sections 79.9 and 79.12 L.S.A. apply if the death or the injury occurs under one of the situations described in Section 79.1.2, i.e. aforementioned situation (1) or (2).
Absence from work for up to 52 weeks without pay if the employee's spouse or child commits suicide.
Absence from work for up to 52 weeks without pay if the employee's minor child disappears.
Section 79.11 L.S.A. provides that an employee may be absent from work for a maximum period of 52 weeks if the employee's spouse or child commits suicide.
As for Section 79.10 L.S.A., it provides that the employee may be absent for the same amount of time if his or her minor child disappears. In this latter case, the circumstances must infer that the minor child who has disappeared is in danger.
To benefit from the new absences set out in this document, an employee must be credited with three (3) months of uninterrupted service. The employee must notify the employer as soon as possible of his or her absence from work and the reasons for such absence. Where circumstances warrant, the employer may ask the employee to account for the length of his or her absence or its repetitive nature by providing a document attesting to the reasons. If the employer gives its consent, the employee may, during the period of absence to which he or she is entitled, return to work on a part-time or intermittent basis.
Sections 79.1.1 and 79.13 L.S.A. stipulate that the employee may not take advantage of the periods of absence set out under new Sections 79.1 and 79.9 to 79.12 L.S.A. if it can be inferred from the circumstances that the employee or, in the case of Section 79.12, the deceased person, if such person is the spouse or minor child, was probably a party to the criminal offence or probably contributed to the injury by his or her gross fault.
The rights usually applicable to employees who are absent because of illness or accident (Division V.1, L.S.A.) will also be extended to employees who are absent in accordance with the new provisions of the Act. Thus, the employee will, inter alia, be entitled to participate in the group insurance and pension plans during his or her absence and be reinstated in his or her former position at the end of the absence.
Lastly, the amendments to the Act respecting labour standards apply from December 18, 2007 even for an incident that occurred before such date, for the time remaining in the normally applicable period of absence.