Who is affected by the amendments?
The amendments apply only to employers in specific industries under the federal government’s oversight (or “federally regulated employers”) who are subject to Part III of the Canada Labour Code (the Code). Examples of such federally regulated industries are banking, air transportation, telecommunications, radio and television broadcasting, interprovincial or international transport, and First Nations band councils. Most employers in Canada are provincially regulated and these Code amendments do not apply to any workplace that is provincially regulated.
Currently, the Code amendments apply to applicable federally regulated employers regardless of their size. However, the amendments include a provision that would restrict the new paid medical leave requirement to federally regulated employers with 100 or more employees. This provision is not yet scheduled to come into force but could be proclaimed into force at later date. If this happens, the requirement to provide paid medical leave would apply only to federally regulated employers with 100 or more employees and smaller federally regulated employers would be relieved of the requirement to provide statutory paid medical leave.
How will the paid medical leave entitlement be earned by employees?
All federally regulated employers, regardless of workforce size, must provide the new paid medical leave as of 1 December 2022. Their employees would then accrue the paid medical leave entitlement as follows:
- After 30 days of continuous employment, employees will earn three days of paid medical leave.
- Thereafter, after each month of continuous employment that they complete, employees will earn one additional day of paid medical leave, until they reach the maximum entitlement of 10 days in a given calendar year.
- Note that, if an employer uses a vacation entitlement year that differs from the calendar year, the employer may utilize that same vacation entitlement year to calculate the paid medical leave entitlement.
In practice, this means current employees employed on 1 December 2022, will accrue three paid medical leave days as of 31 December 2022. The fourth medical leave day will then be accrued on 1 February 2023. The same accrual scheme applies to new hires. If, for example, employees are hired on 25 January 2023, they will accrue three paid days of medical leave as of 24 February 2023.
Are there any rules regarding how employees may take their days of medical leave?
Employers may require medical certificates from employees who take five or more consecutive days of medical leave. Any such request for a medical certificate must be made in writing to an employee no later than 15 days after the employee’s return to work.
Employers can also require paid medical leave days to be taken in full-day increments.
Employees that do not use all their accrued paid medical leave in a given year can carry unused days forward to the next year. However, at all times, an employee’s maximum entitlement to paid medical leave remains at 10 days. In practice, this means that any carried-over days will be counted towards the employee’s 10-day paid medical leave entitlement in the new year, thereby reducing the number of days that the employee may accrue during that year.
How much should an employee be paid for a day of medical leave?
Employees must be provided with their “regular rate of wages” for the day on which they take paid medical leave.
Potential overlap with contractually provided sick leave
Many federally regulated employers may already provide their employees with some type of paid sick leave pursuant to a contract of employment or collective agreement. If such a contractual entitlement exists and is sufficiently similar to the new statutory leave entitlement, the contractual sick leave may overlap with and count towards the new paid medical leave entitlement. However, if the two entitlements significantly differ, employees may be entitled to stack their paid leave entitlements (i.e.,utilize their contractual leave entitlement as well as the paid medical leave provided by the Code). Affected employers should review their specific leave policies with counsel to determine the scenario applicable to their operations.
Changes to the personal illness or injury leave provisions under the Code
The Code has also been amended so that employees can no longer take personal leave for reasons of “personal illness or injury.” Employees may still take up to five days of personal leave per calendar year for other prescribed reasons, such as providing care to family members, addressing urgent personal or family matters, or attending their Canadian citizenship ceremony. As before, employees with three consecutive months of service are entitled to be paid for three out of these five personal leave days.
Affected federally regulated employers should carefully review their existing leave programs, employment contracts, and collective agreements and determine whether any changes are necessary to achieve full compliance with the new Code requirements.
In collaboration with:
Sarah Crossley, Partner
Caroline DeBruin, Associate