Reminder to federally regulated employers: Paid medical leave coming on December 1

As we discussed in a previous blog post, the Canada Labour Code (Code) will soon require federally regulated employers to provide paid medical leave. As of December 1, 2022, employees working in a federally regulated workplace will be entitled to earn up to 10 days of paid medical leave per year.

Here’s what federally regulated employers should know: 

• Accrual of Paid Leave Days: Employees will be entitled to three days of medical leave with pay after 30 days of continuous employment (i.e., December 31, 2022, for existing employees). Following this period of 30 days, employees will earn one additional day at the start of each month after completing one month of continuous employment, up to a maximum of 10 days per year.
• Covered Absences: Under the new Code requirements, employees will be entitled to be paid for absences resulting from i) personal illness or injury, ii) organ or tissue donation, iii) medical appointments during working hours, or iv) quarantine. 
• Payment Amount: Employees must be paid for a medical leave day at their regular wage rate for their normal hours of work. 
• Carry-forward: Employees can carry over unused days of leave to the following year. Each day that is carried forward decreases, by one, the maximum number of days that can be earned in that subsequent year. For example, if an employee uses four days of leave in 2023, six days will carry forward to 2024 and only four additional days of paid medical leave may be earned by the employee in 2024. 
• Medical Certificates: Employers may make a request, in writing, for a medical certificate substantiating any medical leave of five consecutive days or longer.

On November 7, 2022, the federal government published the Regulations Amending Certain Regulations Made Under the Canada Labour Code (Medical Leave with Pay), as well as Interpretation, Policy and Guidelines (IPG) 118 and 119. Together, these regulations and IPGs provide further clarity on some of the mechanics of the new leave entitlements, such as: 

• Regular Wage Calculation: The regular rate of wages for an employee whose hours of work differ from day to day or who is paid on a basis other than time (such as commission) will be:
  • the average daily earnings of the employee (excluding overtime pay) for the 20 days worked immediately before the first day of paid leave; or
  • an amount calculated by a method agreed on pursuant to a binding collective agreement.
• Entitlement Period: Paid sick leave entitlements can be determined with reference to either the calendar year or an employer’s vacation entitlement year (e.g., April – March).
• Record-keeping: Employers will be required to keep certain records pertaining to medical leaves (both paid and unpaid) for at least three years following the leave.

We highlight IPG - 119, which states that employees cannot stack their benefits under an existing contract or collective agreement and the Code if the medical leave provisions under the former are superior in scope and conditions to those provided by the Code. This means taking a day of leave that is provided for by a contract or collective agreement may reduce the entitlement under the Code accordingly. Although IPGs are not legally binding, adjudicators do look to them, and IPG - 119 provides helpful guidance for employers wondering if their employees will soon be entitled to anything more than they already receive. 

Takeaway

Federally regulated employers who currently provide employees with less than the new medical leave entitlements under the Code should begin to prepare for their new obligations. In particular, existing policies and entitlements may need to be updated and/or enhanced to be in line with the Code.

The author wishes to thank Brian Wood, articling student, for his contributions in preparing this legal update.