New amendments to the Canada Labour Code and Canada Labour Standards Regulations may be coming, with varying degrees of certainty.

There are several new amendments, either proposed or enacted, to the Canada Labour Code (the “Code”) and the supporting Canada Labour Standards Regulations (the “Regulations”). With federal labour and employment law undergoing such significant changes, we thought it would be helpful to briefly summarize the actual or potential impact on federal employers.

Thus far, only amendments regarding medical and bereavement leave have received royal assent. However, the Government of Canada’s Labour Program Forward Regulatory Plan: 2022 to 2024 (the “Regulatory Plan”) enumerates several “regulatory initiatives” of which employers should be aware. Some of those have been officially proposed through the Canada Gazette, while others are solely part of the Regulatory Plan for now.

CONFIRMED UPCOMING AMENDMENTS

Bill C-3: New Medical Leave and Bereavement Leave Provisions

Bill C-3: An Act to amend the Criminal Code and the Canada Labour Code, introduces two important amendments to the Code: (i) new paid medical leave provisions; and (ii) new bereavement leave provisions.

Medical Leave

A fulsome explanation of the medical leave provisions is available in our July article, Paid Sick Days on the Horizon for Federally Regulated Employees. In brief, the new provisions require employers to provide employees with up to 10 days of paid sick leave a year depending on their length of service. There are also new employer record-keeping requirements related to these new leave entitlements. These changes are to come into force no later than December 1, 2022.

Bereavement Leave

Bill C-3 also introduces new bereavement leave provisions for: (i) the death of a child or the child of one’s spouse or common-law partner; and (ii) for employees who experience a stillbirth or the stillbirth of their spouse or common-parent or where they would have been a parent as defined by the Code, of the child born as a result of the pregnancy.

In these circumstances employees are entitled to a leave of up to 8 weeks that may be taken during the period that begins on the day that the death occurs and ends 12 weeks after the latest of the days on which any funeral, burial or memorial service of the child occurs.

It is important to note that these are not paid leaves. The Code sets out a separate entitlement to bereavement leave with pay. If the employee has completed three consecutive months of continuous employment with the employer, the employee is entitled to the first three days of bereavement leave with pay.

PROPOSED CHANGES TO REGULATIONS

On October 1, 2022, the federal government published two proposed Regulations Amending Certain Regulations Made Under the Canada Labour Code (the “Proposed Regulations”), which amend the Regulations. These relate to the reimbursement of work-related expenses and employee information and the service of documents and regular rate of wages.

The Proposed Regulations are open for comment until October 31, 2022 through the new online commenting function.

Reimbursement of Reasonable Work-Related Expenses

Bill C-86: Budget Implementation Act, 2018, No. 2, enacted Division XII.1 of the Code (“Reimbursement of Work-related Expenses”), which has not yet been proclaimed into force. This will require employers to reimburse employees for reasonable work-related expenses, subject to certain forthcoming exceptions.

The Proposed Regulations provide guidance on what will qualify as a reasonable work-related expense. The following factors are to be considered in determining whether an expense is work-related:

• whether the expense is connected to the employee’s performance of work;
• whether the expense enables an employee to perform work;
• whether incurring the expense is required by the employer as a condition of employment or continued employment;
• whether the expense satisfies a requirement for the employee’s work imposed by an occupational health or safety standard; and
• whether the expense was incurred for a legitimate business purpose and not for personal use or enjoyment.

The following factors must be considered in determining whether or not the expenses are reasonable:

• whether the expense is connected to the employee’s performance of work;
• whether the expense was incurred to enable an employee to perform work;
• whether it was incurred at the request of the employer;
• whether an amount of expense was incurred beyond the amount necessary to enable the performance of work;
• whether the expense is one that is normally reimbursed by employers in similar industries;
• whether the employer authorized the expense in advance;
• whether the employee incurred the expense in good faith; and
• whether the claim includes documentation, such as a receipt or invoice, that indicates that the expense was incurred.

The Proposed Regulations provide that an employer has 30 days to reimburse the employee after the day on which the employee submits the claim for payment.

Employee Information Regulations

Bill C-86 also amended the Code to require employers to provide employees with a written statement containing information related to their employment within 30 days of being hiring. When updates are made to those materials, employers must provide the employee with a copy of the updated materials within 30 days. This provision is not yet in force.

The Proposed Regulations require the following information in the employment statement:

• the names of the parties to the employment relationship;
• the job title and brief description of their duties and responsibilities;
• the place of work;
• the date of commencement of employment;
• the term of employment;
• the probationary period, if any;
• the specific requirements of employment (e.g. driver’s license, criminal records check);
• the required training;
• the hours of work specific to the employee (including how they are calculated and overtime rules);
• the rate of wages or salary (including overtime rates);
• the frequency of payments;
• any mandatory deductions; and
• the reimbursement of work-related expense (process, authorization, etc.).

Service of Documents

Under the Proposed Regulations, additional manners of service for legal documents issued by Labour Canada will be available. These include courier, fax or other electronic means, and leaving documents with someone who appears to be an adult member of the same household at the last known address or usual place of residence of an individual being served.

The Proposed Regulations also provide for substitutional service whereby the Labour Program may leave a copy of the notice or order at the last known address, residence or workplace of an individual. Furthermore, the Proposed Regulations specify what constitutes additional proof that a document has been sent as well as when service of the document is deemed to be effected.

Regular Rate of Wages

Currently, employees who are required to appear before the Canada Industrial Relations Board (the “CIRB”) for Part II, Part III and Part IV matters must be paid for the time spent at the proceeding that would otherwise have been spent at work, at their regular rate of wages.

The new Proposed Regulations will provide clarity regarding the calculation of wages for employees who are normally compensated at something other than an hourly rate, such as on a commission basis.

Administrative Monetary Penalties

The Proposed Regulations also include updated administrative monetary penalties for violations of the above provisions.

Raising the Minimum Age of Employment for Hazardous Occupations

This is an additional proposed amendment to the Regulations that will raise the minimum age for employment in hazardous occupations from 17 to 18. This includes:

• work in underground mines
• work that is likely to be injurious to health or safety; and
• work between the hours of 11:00 p.m. on one day and 6 a.m. on the following day.

POSSIBLE UPCOMING AMENDMENTS

The following amendments are noted in the Regulatory Plan, but have yet to be formally proposed in the Canada Gazette. Many are undergoing a consultation phase and have yet to be finalized.

A Ban on Replacement Workers

There is currently a private members bill from a Bloc Québécois MP proposing an amendment to the Code that would ban replacement workers during strikes and lockouts. It would ban the use of new employees, contractors, existing non-bargaining unit employees, and employees from other employer locations during strikes and lockouts. It would also grant the CIRB cease and desist powers and the ability to fine employers $10,000.00 for each day that the provisions are violated. However, as a private members bill it is unlikely to be passed in Parliament.

The Liberal Party ran on a campaign promise of banning replacement workers solely in the event of a lockout. It also agreed to enact such a provision in its bilateral agreement with the NDP. Therefore, it is more likely that a ban on replacement workers during lockouts is forthcoming by way of a Government bill, the details of which are yet to be determined.

Long-Term Disability (“LTD”) Plans

Under the Code, employers are required to insure long-term disability plans so that eligible employees continue to receive their LTD benefits if their employer becomes insolvent.

The Federal Government has proposed amendments to the Regulations to define circumstances and conditions under which certain employers may provide benefits to their employees under an LTD plan that is not insured. In these cases, the uninsured LTD plan is protected from insolvency to the same extent as a plan insured by a financial institution or licensed insurance provider.

The proposed regulations are not expected to have any compliance or administrative costs.

Termination of Employment

The Federal Government is proposing regulations to support amendments to Part III of the Code not yet in force.

Amendments to the Code include the following termination provisions:

• Updating group termination of employment provisions to allow employers to provide:
  • pay in lieu of the required 16-week group termination notice; or
  • a combination of notice and pay in lieu, and
• creating a graduated notice of individual termination of employment that will increase based on the employee’s continuous length of service.

The proposed regulations related to these amendments grant the authority to:

• exempt employers from the application of group termination of employment provisions; and
• establish the value of transitional support measures in a group termination of employment, and defining other related terms.

These new regulations may incrementally increase compliance and administrative costs.

We will be providing further updates as details emerge regarding these upcoming changes. If you have any questions about this topic, or any questions relating to workplace law generally, please do not hesitate to contact a Mathews Dinsdale lawyer.

The Firm gratefully acknowledge the assistance of Liam Billings, an Articling Student in the firm’s Toronto office.