Certain long-awaited amendments to the Canada Labour Code (the “Code”) are set to come into force on September 1, 2019. These changes come as a result of two significant pieces of legislation, which aim to modernize 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 September 1, 2019. Federally regulated employers subject to the Code should be aware of these amendments that will soon be law, the most significant of which include:
Meal Breaks and Rest Periods: Employers will be required to provide an unpaid break of at least 30 minutes during every period of 5 consecutive hours of work, with certain exceptions. Further, the amendments will provide a rest period of at least 8 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 any other manner, 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 contractors’ employees performs services for a different institution or employer. Mandating continuity of employment where this 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 (4 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 reprising 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 lessened 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.” The following new leaves are also being introduced:
- Leave for Victims of Family Violence – Up to five (5) 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 (5) days each calendar year, which will include three (3) paid days after 3 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 (5) 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 3 months of continuous employment; and
- Bereavement Leave – Up to five (5) 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 6 weeks after the latest day on which any funeral, burial or memorial service occurs. After 3 months of continuous employment, the first three (3) days are paid.
Vacation: Employees who complete 10 consecutive years of employment with the same employer will be entitled to 4 weeks of vacation time (8% vacation pay). Employees who complete 5 consecutive years of employment with the same employer will be entitled to 3 weeks of vacation time (6% vacation pay). Previously the right to 3 weeks of vacation was gained after 6 consecutive years of employment. Employees who complete 1 year of employment will be entitled to 2 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 6 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 4 week period immediately preceding the week in which the holiday occurs.
Corresponding amendments to the regulations made under the Code have been made to complement these amendments that also will come into effect on September 1, 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 September 1, 2019, and has yet to be announced. Of note, there are amendments addressing the termination of employment, as well as equal pay. Our previous In A Flash summary of Bill-86 can be found here. Keep an eye out for future In A Flash email publications on this subject, as more information on the date these provisions will come into force becomes available.
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.
The revised regulations can be found here.
If you have any questions regarding the impact of any upcoming changes to Canada’s labour laws on your business, please do not hesitate to contact a Mathews Dinsdale lawyer .