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Canada | Publication | August 2019
Important changes to federal employment standards under Part III the Canada Labour Code are set to come into effect on September 1, 2019, that will have a significant impact on many employers operating in the federal sphere. Amendments to the Code include a new right for employees to request flexible work arrangements, additional leaves, and other measures geared to enhancing flexibility in the workplace. These important changes are discussed below.
Under the new provisions of the Code, an employee who has completed six months of continuous employment with a federally regulated employer may request flexible arrangements relating to his or her number of hours, work schedule, or work location, and other details that may be later prescribed by regulation.
Employees will be required to make a request in writing. Among other requirements, all employee requests for a flexible work arrangement must explain the effect the request may have on the employer and suggest how this effect could be properly managed. Note that any request the employer receives must be well documented.
Should an employer entirely or partly refuse a request, the employer will be required to provide the reason(s) in writing. The Code prescribes a narrow list of reasons for which an employer may refuse an employee request, namely:
These leaves will not be prorated for 2019, meaning employees will be entitled to the full periods of leaves provided by these amendments, as of September 2019. Part-time and temporary employees are also entitled to these leaves, on a non-prorated basis. Students and interns will also be entitled to these leaves.
The federal government’s Labour Program has recently clarified that these new leaves may also be used concurrently with other leaves provided by the Code as long as the purpose of the leaves is the same. For example, an employee who takes a personal day to care for an ill family member may also take medical leave, or critical illness leave to care for that ill family member, provided he or she meets the criteria to qualify for those leaves.
Employees whose collective agreement or employment contract provides the same amount and type of leave will not be eligible for additional leave under the Code, provided the leave in the collective agreement or employment contract can be taken for the same reason as those provided by the Code.
Employees may be entitled to take their vacation all in one period or in multiple periods. They can also interrupt or postpone an approved vacation to take a leave of absence, which includes any of the new leaves noted above. Vacation pay and time entitlements have also been increased to the following levels:
In addition, during every year of employment, employees are entitled to a vacation with vacation pay of:
Many employers already have employment contracts, policies or collective agreements that govern employee requests for flexible work arrangements or to take one of the leaves mentioned above. However, employers must consider whether employees are afforded a greater benefit under their current contract in comparison with the new leaves under the Code, failing which, employers may have to revise their leave provisions or provide additional days of leave to comply with the Code.
In particular, this analysis will be necessary for the paid leaves the Code now provides. For example, if an employee already has three paid personal days, but those days cannot be used for a purpose set out in the Code (e.g., education of an immediate family member), an employer will likely have to expand its definition of personal days to include the same reasons provided for under the Code.
With these new leaves, employers may see an increase in stacking of multiple leaves, depending on the circumstances. In particular, many leaves under the Code can be taken for similar reasons, and an employer may not have discretion on the timing of these leaves if they are all taken for the same purpose (i.e., personal leave, medical leave and critical illness leave could be taken consecutively). In that sense, employers should be aware that their usual discretion in approving multiple or consecutive requests for leave will not necessarily apply for the leaves provided under the Code.
As well, employers must make adequate changes to their systems to ensure part-time and temporary employees are paid according to the calculation set out in subsection 17 (a) of the Regulations Amending the Canada Labour Standards, which will also come into force on September 1, 2019. For those employees, paid days for personal leave, family violence leave and bereavement leave are calculated by the average of the employee’s daily earnings, exclusive of overtime hours, for the 20 days the employee has worked immediately preceding the first day of the period of paid leave.
Moreover, although employers will retain a certain discretion when considering requests made for flexible work arrangements, the acceptable grounds for refusal are now narrowly prescribed by the Code. Employers would do well to assess what impact this new framework for flexible work arrangement requests will have on the workplace, and consider amending or developing protocols and policies, if appropriate. For example, an employer may wish to set out scenarios where changes to an employee’s work schedule, location or hours are feasible, or not, depending on the business’s operational needs.
Likewise, employers will retain discretion regarding granting or denying requests for multiple periods of vacation, having regard to their operational requirements. The Code does not constrain the circumstances regarding when these requests can be made, and thus, where appropriate, employers may wish to develop internal criteria for such requests, as well as procedures for processing the requests, which must be done in writing.
It is important that employers carefully review their relevant employee documents, policies, collective agreements, procedures and practices to ensure compliance with the terms of these new provisions, as they will very soon be in full force.
For more detailed information on the new September 1, 2019, amendments to Part III of the Code, please refer to our Federal Employment and Labour Guide for Employers here.
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