By Jennifer Brown, AdvocateDaily.com Senior Editor
Changes to the Canada Labour Code (CLC) around paid leave for federally regulated employees could open the door for other forms of leave from work to be covered in the future, says Toronto employment lawyer Doug MacLeod.
“In this legislation, you’re seeing more paid leaves. That to me is the thin edge of the wedge because once you establish the principle that leaves can be paid, then it’s easy to increase the number of days of paid leaves,” says MacLeod, principal of MacLeod Law Firm.
Changes enacted by the Budget Implementation Act, 2017, No.2 (Bill C-63) and the Budget Implementation Act, 2018 No. 2 (Bill C-86) came into effect Sept. 1. The changes serve to modernize the CLC to address current issues in the workplace, some of which have been addressed in other provincial legislation affecting employers and employees, MacLeod explains.
Federally regulated employees account for about 10 per cent of the population and include Crown corporations, banks, airlines, and railroad workers, he says.
“My guess is most federal employers would be unionized and have better standards than the minimum standards set out in the CLC, so a small number of employers will be affected by this from a practical perspective,” MacLeod tells AdvocateDaily.com.
Paid and unpaid leaves
For personal leave, three of five days will now be paid for employees with three months of continuous service, but it is for specified reasons, including illness or helping to care for a family member or attending a citizenship ceremony.
As well, five of the 10 days of leave allowed for victims of family violence will be paid. Bereavement leave entitlement is now extended to include two additional unpaid days to the existing three paid days, MacLeod says.
There is also a new Traditional Aboriginal Practices leave for Aboriginal persons, who have completed at least three consecutive months of continuous service, allowing for up to five days of unpaid leave per calendar year for hunting, fishing, harvesting or other practices.
Many employees who work for federally regulated employers already enjoy terms of employment that exceed the CLC standards in their collective agreements.
MacLeod says some of the changes also mirror what former Ontario premier Kathleen Wynne introduced with Bill 148.
“Many of the Sept. 1 changes to the CLC were repealed in Ontario after Premier Doug Ford was elected,” he says.
“Most of the changes to the Canadian Labour Code that came into effect on Sept. 1 [Ontario Premier Doug] Ford repealed in Ontario, but the feds are implementing them two years later,” he says.
Prior to Bill 148 in Ontario, there were no paid leaves under the Employment Standard Act (ESA) — it was all unpaid. Most of the paid leaves introduced in Bill 148 have since been repealed.
Other areas introduced on Sept. 1 include provisions for refusing overtime if it conflicts with family responsibilities. In this area, MacLeod says the human rights legislation already protects parents, and he predicts some federally regulated employees might misinterpret the meaning in the new legislation.
“Under human rights legislation, you can’t be discriminated on the basis of family status. If you have a special needs child and need reduced hours, the employer has to do that under the duty to accommodate,” he says. “The language in the legislation clearly contemplates a serious childcare commitment — it will be interesting to see how it plays out in the workplace, but only certain kinds of family commitments apply.”
The CLC changes also say employers must provide a work schedule to employees a minimum of 96 hours before the work commences. The employer must give an employee at least 24 hours’ written notice of a shift change.
“For most employers in the federal realm that is not a problem because working hours are pretty constant, but for employers dependent on weather conditions and for certain customer service businesses this is a significant change,” says MacLeod. “To me, this really fetters management’s right to schedule work in a fairly significant way for these types of employers.”
Flexible work arrangements
Another significant change is around flexible work arrangements which will permit employees with at least six months of continuous service to request a change in working conditions, such as to their schedule, location or number of hours. Employers must respond in writing either granting or denying the employee’s request. The legislation specifies the grounds for saying no to such a request, he says.
“This was in place in Ontario but cancelled by the Ford government,” says MacLeod. “The only obligation is to respond — the employer can say no for any reason, so I don’t understand the reason behind this.”
There is also a provision that provides for four weeks of vacation after 10 years of service.
“That is so old school,” says MacLeod. “That’s eight per cent of compensation, so if you’re an employer and you’re deciding whether to hire an employee or retain an independent contractor, a contractor could eventually be eight per cent cheaper. In today’s work, four weeks vacation is very generous and I’m surprised the federal government concluded four weeks should be a minimum standard.”
Medical and nursing breaks
Unpaid medical and breastfeeding breaks are also covered in the new law. For example, employees who are nursing are entitled to unpaid breaks to allow them to nurse or express breast milk, and employees are entitled to unpaid breaks necessary for medical reasons.
“There are a couple of areas that are not really needed from an employment standards perspective because these issues are already addressed under human rights legislation,” says MacLeod.