Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Last December, Bill C-3, An Act to amend the Criminal Code and the Canada Labour Code (Bill C-3), received Royal Assent. Once in force, Bill C-3 will repeal the Canada Labour Code’s (CLC) current entitlement for employees in federally regulated workplaces1 to a leave of absence of up to five days in every calendar year to treat illness or injury, and instead entitle them to a maximum of 10 days of paid medical leave per calendar year. The actual number of days that an employee will earn will depend on the length of their continuous employment.
On June 23, 2022, Bill C-19, Budget Implementation Act, 2022 (Bill C-19), received Royal Assent. Bill C-19 made amendments to the paid medical leave provisions in Bill C-3. Among these amendments, Bill C-19 reduced the eligibility period for earning additional paid medical leave days after the initial entitlement, from 60 days of continuous employment to 30 days.
As previously discussed, on July 16, 2022, the federal government published Regulations Amending Certain Regulations Made Under the Canada Labour Code (Medical Leave with Pay) (Proposed Regulations) “to support the implementation of the paid medical leave provisions and to ensure that they can be enforced.” Interested persons had until August 15, 2022, to comment on the Proposed Regulations.
On November 7, 2022, the federal government published final regulations in support of the medical leave provisions, Regulations Amending Certain Regulations Made Under the Canada Labour Code (Medical Leave with Pay) (Final Regulations). On the same day, to provide additional guidance, the Labour Program published two Interpretations, Policies and Guidelines (IPGs), Medical leave with Pay - IPG-118 and Stacking - Medical Leave with Pay - IPG-119.
The CLC’s new paid medical leave provisions and the Final Regulations come into force on December 1, 2022.
Paid Medical Leave Under the CLC
As of December 1, 2022, federal employees who are subject to Part III of the CLC will be subject to the following:
- All employees who complete 30 days of continuous employment will be entitled to three days of paid medical leave. Accordingly, an employee as of December 1, 2022, will accrue three paid days of medical leave as of December 31, 2022. Employees hired after December 1, 2022, will accrue three paid days of medical leave upon completing 30 days of continuous employment.
- After the first 30 days of continuous employment, employees will accrue one day of paid medical leave at the beginning of each month, after they complete one month of continuous employment, up to a maximum of 10 paid days per calendar year.
- In each subsequent calendar year, at the beginning of each month after completing one month of continuous employment, the employee will earn one paid day of leave, up to a maximum of 10 days;
- Each paid day must be paid at the employee’s regular rate of wages for their normal hours of work, and that pay will, for all purposes, be considered wages;
- Each day of paid medical leave not taken by an employee in a calendar year carries forward to January 1 of the following year and counts toward the 10 days that can be earned in that year. This decreases the maximum number of days that can be earned in the following calendar year, i.e., the employee will not be entitled to take more than 10 paid days in a year;
- The paid leave may be taken in one or more periods. The employer may require that each period be at least one day’s duration;
- Employers may require employees who take at least 5 consecutive days of paid medical leave to provide medical certificates within 15 days of their return to work;
- If a leave of absence without pay is three days or longer, the employer may require that the employee provide a certificate issued by a healthcare practitioner certifying that the employee was incapable of working for the period of their leave; and
- Employees who change employers due to the 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.
Among other things, the subjects below are addressed in the Final Regulations:
Regular rate of wages for purposes of medical leave
Section 17 of the Canada Labour Standards Regulations indicates how the “regular rate of wages” will be calculated for an employee whose hours of work differ from day to day or who is paid on a basis other than time (e.g., commission). This method currently applies to calculations for other types of paid CLC leaves will also now apply to paid medical leave.
Employers that base the calculation of the annual vacation of their employees on a year other than a calendar year
Employers that base the calculation of annual vacation on a year other than a calendar year are allowed to choose to use that year instead of a calendar year for the purposes of paid medical leave. This does not affect the entitlement of employees to 10 days of paid medical leave per year.
Employers will be required to keep the following records related to each period of paid medical leave taken by an employee:
- The dates of commencement and termination of the leave;
- The year of employment in respect of which the leave was earned;
- The number of days of leave carried over from the previous year;
- A copy of any written request for a medical certificate made by an employer; and
- A copy of any medical certificate submitted by an employee.
Administrative monetary penalties
To promote compliance, paid medical leave requirements and record keeping requirements have been added to the list of designated and classified violations that are subject to an administrative monetary penalty under the Administrative Monetary Penalties (Canada Labour Code) Regulations.
Time worked for purposes of hours of work averaging
Paid medical leave has been added to the list of paid leaves that are counted as time worked for the purposes of hours of work averaging.
While Medical Leave with Pay – IPG 118 provides general guidance on paid medical leave, Stacking – Medical Leave with Pay – IPG 119 provides guidance with respect to (a) paid sick leave taken under a collective agreement (CA) or employment contract prior to December 1, 2022; and (b) paid sick leave taken under a CA or employment contract generally.
Paid sick leave taken under a CA or employment contract prior to December 1, 2022
IPG 119 indicates that paid sick leave taken before December 1, 2022, under the terms of a CA or employment contract will not reduce an employee’s entitlement to paid CLC medical as of December 1, 2022. As of December 31, 2022, current employees with at least 30 days of continuous employment will accrue their first three paid CLC medical leave days, regardless of whether they used paid sick days under a CA or employment contract earlier in 2022.
Paid sick leave taken under a CA or employment contract in general circumstances
IPG 119 provides that, generally, periods of paid sick leave taken under the terms of a CA or employment contract will count towards an employee's entitlement to paid medical leave under paid CLC medical leave if all of the following criteria are satisfied:
- The employee can take the leave provided for under the CA or employment contract for one or more of the following reasons: personal illness or injury of the employee; organ or tissue donation from the employee; medical appointments for the employee during working hours; quarantine of the employee;
- The employee may take the leave in one or more periods. The employer may require that each period of leave be of not less than one day's duration;
- The employer does not require that the employee provide a medical certificate if they are absent for fewer than 5 consecutive days; and
- The employee is entitled to:
- receive their regular rate of wages for each day of the leave.
- maintain and accumulate pension, health and disability benefits, as well as seniority, during the leave, and
- be reinstated after the end of the leave.
1 The vast majority of workplaces (90%) are provincially regulated. Federal workplaces include banks, railways, airlines and telecommunications.