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.
UPDATE: On June 23, 2022, federal Bill C-19, Budget Implementation Act, 2022, No. 1, received Royal Assent. Bill C-19 makes the following amendments to the paid medical leave of absence provisions that were included in Bill C-3 (to be proclaimed in force):
- Employees will be entitled to 3 days of paid medical leave after 30 days of continuous employment.
- After the first 30 days of continuous employment, employees will earn 1 day of paid medical leave at the beginning of each month, after they complete one month of continuous employment;
- Subject to Regulations, employees may earn up to 10 days of paid leave in a calendar year;
- Subject to Regulations, each day of medical leave of absence with pay not taken by an employee in a calendar year carries forward to January 1 of the following calendar year and they count toward the 10 days that can be earned in the new year;
- 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;
- 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.
- The provisions relating to medical leave of absence come into force no later than December 1, 2022.
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On December 17, 2021, Bill C-3, An Act to amend the Criminal Code and the Canada Labour Code (Bill C-3), received Royal Assent. Bill C-3’s intention is to provide support, in light of the COVID-19 pandemic, to workers in federally regulated industries1 via amendments to the Canada Labour Code (CLC),2 and to healthcare workers via amendments to the Criminal Code. Details of these amendments are provided below.
Amendments to the CLC
Bill C-3’s amendments to the CLC will come into force on a day to be fixed by order of the Governor in Council.
Medical Leave of Absence with Pay
Bill C-3 will repeal the current entitlement to a leave of absence of up to five days in every calendar year to treat illness or injury, and instead entitle employees to a maximum of 10 days of medical leave of absence per calendar year. The actual number of days that an employee will earn will depend on the length of the employee’s continuous employment:
- After 30 days of continuous employment with the employer, the employee will earn three paid days;
- After 60 days of continuous employment, at the beginning of each month after completing one month of continuous employment, the employee will earn one paid day of medical leave of absence with pay, up to a maximum of 10 days per 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, 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 paid day that an employee does not take in a calendar year is carried forward to January 1 of the following year. This decreases the maximum number of days that can be earned in the following year, i.e., the employee will not be entitled to take more than 10 days in a calendar year;
- The paid leave of absence may be taken in one or more periods. The employer may require that each period be at least one day’s duration;
- The employer may require an employee who has taken at least five consecutive paid days to provide a certificate issued by a healthcare practitioner certifying that the employee was incapable of working for the period of their paid leave. This request must be in writing and made no later than 15 days after the employee returns to work; and
- 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.
Pursuant to a private member’s bill, Bill C-220, An Act to amend the Canada Labour Code (bereavement leave) (Bill C-220), which received Royal Assent on June 29, 2021, the CLC was amended:
- To extend the period of bereavement leave to which an employee is entitled (from five days to 10 days, with the first three days paid where the employee has three consecutive months of continuous employment with the employer, i.e., the leave entitlement was extended by five unpaid days); and
- To expand eligibility for the leave to include employees who, at the time a family member dies, are on compassionate care leave or leave related to critical illness in respect of the deceased person.
These amendments came into force on September 29, 2021, three months following Royal Assent.
Bill C-3 further amends the bereavement leave by replacing the existing section 210(1) of the CLC with a new section 210(1). The new bereavement leave provisions, which include the amendments made by Bill C-220, now provide:
- Death of a Member of the Employee’s Immediate Family or Family Member for whom the Employee is, at the Time of the Family Member’s Death, on Compassionate Care Leave or Critical Illness Leave. In the event of the death of a member of their immediate family or other family member for whom the employee is on compassionate care leave or critical illness leave at the time of the family member’s death, an employee will be entitled to a leave of up to 10 days. This leave may be taken during the period that begins on the day on which the death occurs and ends six weeks after the latest of the days on which any funeral, burial or memorial service of that deceased person occurs.
- Death of Employee’s Child or the Death of a Child of their Spouse or Common-law Partner. In the event of the death of a child (as defined) of the employee or the death of a child of their spouse or common-law partner, an employee will be entitled to a leave of up to eight weeks. This leave may be taken during the period that begins on the day on which the death occurs and ends 12 weeks after the latest of the days on which any funeral, burial or memorial service of the child occurs.
- Stillbirth. In the event of a stillbirth (as defined) experienced by the employee or their spouse or common-law partner or where they would have been a parent (as defined) of the child born as a result of the pregnancy, the employee will be entitled to a leave of up to eight weeks. This leave may be taken during the period that begins on the day on which the stillbirth occurs and ends 12 weeks after the latest of the days of any funeral, burial or memorial service in respect of the stillbirth occurs.
- Bereavement Leave with Pay. If the employee has completed three consecutive months of continuous employment, the employee is entitled to the first three days of the leave with pay at their regular rate of wages for their normal hours of work. This pay must be considered wages.3
Amendments to the Criminal Code
Bill C-3’s amendments to the Criminal Code will come into force 30 days after Bill C-3 received Royal Assent (i.e., 30 days after December 17, 2021).4
Bill C-3 will amend the Criminal Code by adding section 423.2 (Intimidation — health services). This section address situations in which healthcare workers, or those seeking access to healthcare, are intimidated. Specifically, section 432.2 will make it an offence for a person to engage in any conduct with the intent to provoke a state of fear in:
- A person in order to impede them from obtaining health services from a health professional;
- A health professional in order to impede them in the performance of their duties; or
- A person, whose functions are to assist a health professional in the performance of the health professional’s duties, in order to impede that person in the performance of those functions.
Section 423.2 will also provide that every person who, without lawful authority, intentionally obstructs or interferes with another person’s lawful access to a place at which health services are provided by a health professional, commits an offence.
Finally, s. 432.2 will provide that every person who commits an offence described above (intimidation or obstruction/interference) is guilty of an indictable offence and subject to imprisonment for a term of not more than 10 years; or guilty of an offence punishable on summary conviction.
1 Sectors regulated by the federal government include, but are not limited to, air transportation, banks, interprovincial rail transportation, radio and television broadcasting, road transportation services, and telecommunications.
2 These amendments do not impact provincially regulated employers (i.e., 90% of employers).
3 Subsection 210(2), CLC.
4 These amendments impact both federally and provincially regulated employers.