As of December, many federal employers will be required to provide employees with up to 10 paid days of medical leave as a result of amendments to the Canada Labour Code.
Background
The new paid medical leave entitlement was included in Bill C-3, An Act to amend the Criminal Code and the Canada Labour Code, which was introduced in the House of Commons on November 26, 2021 and received Royal Assent on December 17, 2021.
Federal Bill C-19, Budget Implementation Act, 2022, No. 1, which received Royal Assent on June 23, 2022, included further amendments to the forthcoming paid medical leave provisions of the Canada Labour Code (the “Code”). These amendments have not been proclaimed into force. However, the new leave will come into force no later than December 1, 2022.
This new paid medical leave requirement will only apply, at least initially, to employers with 100 or more employees. However, this provision is to be repealed at some future date, such that the requirement will have broad application.
Overview of the New Entitlements
The new paid medical leave provisions include the following entitlements:
- employees will be entitled to three days of paid medical leave after 30 days of continuous employment
- after this initial 30 day period, employees will earn one day of paid leave at the beginning of each month, after completing one month of continuous employment
- subject to regulations, employees can earn up to 10 days of paid leave in a calendar year
- paid leave may be taken in one or more periods, and the employer may require that each period of leave is a minimum of one day’s duration
- an employee is entitled to receive pay for their normal hours of work at their regular rate for each day of medical leave
- subject to regulations, each day of medical leave of absence with pay that an employee does not take in a calendar year carries forward to January 1 of the following calendar year and decreases, by one, the maximum number of days that can be earned in the new year
- employers may require employees who take at least five consecutive days of paid medical leave to provide medical certificates within 15 days of their return to work
- employees who change employers due to lease or transfer of a work, undertaking or business or due to a contract being awarded through a retendering process are deemed to be continuously employed with one employer
What about Existing Entitlements to Leave?
An employee’s current entitlement under the Code of up to five days (including three paid days) of Personal Leave for treating the employee’s own “illness or injury” will be repealed in connection with the coming into force of the new medical leave. However, Personal Leave on other grounds (e.g. to carry out responsibilities related to family members’ health or care) would remain in place. The existing entitlement to personal leave to treat illness/injury will continue to apply to employers with less than 100 employees.
The current unpaid medical leave provisions of the Code will remain in place notwithstanding the new paid medical leave entitlement.
The new paid medical leave amendments also provide the government with the authority to make regulations defining terms such as “regular rate or wages” and “normal hours of work”, or modifying the application of the medical leave to employees or classes of employees who are entitled to earn “substantially equivalent” periods of medical leave of absence with pay.
Next Steps
The Labour Program circulated draft regulations in mid-July 2022 for comment. The regulations do not include meaningful changes for most federal employers. Employers may provide comments up to August 15, 2022.
Employers are also encouraged to consider how these new paid medical leave entitlements will interact with their existing leave programs, including any commitments they have made (or are otherwise considering making) in collective bargaining. Please contact the authors or your regular Fasken lawyer if you have any questions.
