While 2017 brought about sweeping changes to the Employment Standards Act, 2000, 2018...brought about sweeping changes to the Employment Standards Act, 2000. While 2017 brought about employer panic and confusion over the legalization of cannabis, 2018... continued to do much the same. For yet another year, we were treated to several judicial assessments of the enforceability of termination clauses, and we continued to see the quantums of human rights and other damages increase. In a sense, everything old is new again.
Almost every jurisdiction in Canada has revised or is in the process of amending their employment standards legislation, and the Canadian government is no exception. On September 1, 2019, several changes to the Canada Labour Code came into force. These changes impact a number of labour standards including breaks and rest periods, vacation and vacation pay and leaves of absence.
Remember that the Canada Labour Code governs employees that are employed in federal undertakings, which is a minority. Most are governed by the legislation of the province or territory in which they work.
Below we highlight some of these changes.
Breaks and Rest Periods
- Employees are entitled to unpaid breaks of at least 30 minutes during every period of five consecutive hours of work
- if an employer requires an employee to be available to work during the break, it must be a paid break
- the break may only be postponed and cancelled in emergency situations
- Managers and certain professionals are excluded.
- Employees are entitled to a rest period of at least eight consecutive hours between work periods or shifts – except in emergency situations.
- Employees are entitled to unpaid breaks if required for medical reasons
- this includes taking medication or for exercise
- employers are entitled to request a medical certificate from a health care practitioner indicating the length and frequency of breaks needed.
- Employees are entitled to unpaid breaks for nursing a child or expression of breast milk
- No medical certificate is required.
Scheduling and Shift Changes
- Employers are required to provide employees with at least 96 hours’ (4 days) notice of their work schedule
- the work schedule must be provided in writing
- employees may refuse to work any shift that starts less than 96 hours after the schedule was received without fear of reprisal. This does not apply:
- if a collective agreement specifies an alternative framework for providing the work schedule or that the section does not apply;
- the scheduling change is as a result of the employee’s request for a flexible work arrangement;
- it is necessary in order to deal with an unforeseen emergency.
- Employers are required to provide workers with at least 24 hours’ notice if a shift has been added, removed or changed in their work schedule. This does not apply:
- the scheduling change is as a result of the employee’s request for a flexible work arrangement.
Vacation and Vacation Pay
- After one year of service – two weeks of vacation and vacation pay of 4%;
- After five years of service – three weeks of vacation and vacation pay of 6%;
- After ten years of service – four weeks of vacation and vacation pay of 8%;
- Annual vacation may be taken in more than one period.
- An employee may interrupt or postpone a vacation in order to take a leave of absence or because of illness or injury.
Holidays and Holiday Pay
- Employers are entitled to substitute another day for a general holiday, subject to approval in writing from the affected employee, or by 70% of the affected employees.
- posted notice of any change must be at least 30 days prior.
- The 30-day minimum length of service requirement for holiday pay is eliminated. All employees are now entitled to holiday pay.
Continuity of Employment
- Successorship rules apply:
- to businesses that become federally regulated through the transfer of their business assets or a change in business practices;
- where work is transferred from one business to another through retendering of a service contract if the same employees continue to perform the work.
- Successorship rules do not apply if there is more than a 13-week gap between the employment with the old employer and the new employer.
Leaves of Absence
- The minimum service requirement has been eliminated for entitlement to:
- maternity leave,
- parental leave,
- critical illness care leaves,
- death or disappearance of a child leave, and
- Sick leave (now called medical leave)
- This leave is up to 17 weeks and may be used for personal illness or injury, organ or tissue donation, or medical appointments during work hours.
- The minimum service requirement for reservist leave has been reduced to three months. The duration of the leave is a maximum of 24 months in any 60 month period.
- After three consecutive months of continuous employment, an employee is entitled to traditional Aboriginal practices leave for up to five days of unpaid leave each calendar year.
- Court or jury duty leave has been added. The employee may take a leave of absence for the length of time necessary to attend court to act as a witness or juror, or to participate in jury selection.
- Bereavement leave has been extended to five days, the first three of which are paid if the employee has at least three months of service.
- An employee is entitled to victims of family violence leave for up to ten days each calendar year if the employee or their child is a victim of family violence. The first five days are paid if the employee has at least three months of service. The employer may request supporting documents.
- An employee is entitled to personal leave for up to five days per calendar year, including three days with pay after three consecutive months of continuous employment. The employer may request supporting documents.
- Employers and employees may agree to banking time instead of overtime pay.
- Employees may refuse overtime to fulfill a family responsibility, so long as they have taken reasonable steps to carry out that responsibility by other means. Overtime refusal is not permitted in emergency circumstances.
Flexible Work Arrangements
- Employees with at least six consecutive months of employment are permitted to request a change to:
- number of hours they work,
- their work schedule,
- their work location, and
- other terms and conditions to be prescribed.
- An employer may refuse such a request only on certain grounds, such as:
- additional cost that would burden the employer,
- detrimental impact on work quality or quantity,
- insufficient work, and
- inability to reorganize work among employees.
- Employers must respond to the request in writing within 30 days. Changes can only be made for unionized employees if agreed in writing by the employer and union.