Canada: Canada Implements Significant Reforms To Basic Federal Employment Standards

Last Updated: September 13 2019
Article by Stephen Shore and Jordan Romano

Canadian employers subject to federal regulation will want to take note of changes to the Canada Labour Code that came into force on September 1, 2019. These reforms apply to a large number of minimum employment standards with vacation, breaks, leaves of absences, and predictive scheduling impacted, among others. As a result of the far-reaching nature of the changes, they will have a significant impact on federally regulated workplaces.

Notably, the changes are taking effect at a very interesting time, occurring on the cusp of the Canadian federal election and well into a calendar year. On this latter point, many employers have expressed concern about how to approach changes that impact annual entitlements, since only one-third of the calendar year remains after September 1, 2019. This article outlines the most significant changes to the Code that will affect federal employers.

Hours of Work and Predictive Scheduling

Work Schedule: There is a new requirement to provide 96-hours' written notice of an employee's work schedule, subject to certain exceptions and alternate time frames that may exist under collective agreements.

Shift Changes: There is a new requirement to provide 24-hours' written notice of shift changes. This is concerning for employers that rely on shift flexibility to manage production schedules or spikes in demand.

Overtime: An employee is now able to enter into an agreement with his or her employer to be granted time off of not less than 1.5 hours with pay for each hour of overtime worked. Employees will also have the right to refuse overtime for certain personal responsibilities. (While this change is causing worry among some employers, it may prove to be less of a concern once federal regulators clarify their definition of "certain personal responsibilities.")

Rest Periods: There are new provisions requiring unpaid 30-minute breaks. There is also a requirement for rest periods of at least eight hours between work periods/shifts, subject to exceptions for certain emergencies.

Flexible Work Arrangements

Requesting a Change: There is a new requirement that after working for six months, an employee will have the right to request, in writing, a change to hours worked, work schedule, location, and other terms and conditions to be prescribed. An employer must respond to a request for a flexible work arrangement in writing within 30 days of receiving the request. An employer can grant a request in whole or in part, or may refuse such a request if

  1. it would result in additional costs that would be a burden to the employer;
  2. it would have a detrimental impact on the quality of work;
  3. the employer could not reorganize the work among other employees; or
  4. there would be insufficient work for the requesting employee.

Leaves of Absence

Service Requirements: An employee is no longer required to attain six months of continuous service to qualify for maternity (pregnancy), parental, critical illness, and child death/disappearance leaves of absence.

Family Violence Leave: An employee who is a victim of family violence or a parent of a victim of family violence may soon take a leave of up to 10 days every year. If an employee has continuously worked for the employer for three months, the employee will be entitled to paid leave for the first five days of the leave.

Bereavement Leave: An employee is now eligible for up to five days of bereavement leave (the first three of which will be paid for an employee with at least three consecutive months of service) in the event of the death of a member of his or her immediate family.

Personal Leave Days: An employee is now entitled to a new personal leave of up to five days per calendar year, including three days with pay. An employer may request supporting documentation no later than 15 days after an employee returns to work and the employee must provide it if reasonably practicable. This leave may be taken to deal with

  1. personal illness or injury (in addition to medical leave);
  2. responsibilities regarding the health or care of a family member;
  3. responsibilities regarding the education of a family member who is less than 18 years of age;
  4. an urgent matter concerning the employee or a family member;
  5. attending one’s Canadian citizenship ceremony; or
  6. additional reasons prescribed by regulation.

Vacation Entitlement

Vacation Periods/Interruptions: With the upcoming changes, vacation is to be taken in one period unless the employer approves more than one period of vacation. An employee may also interrupt or postpone a vacation to take a leave of absence or a sick leave.

Entitlements: Employers should also take note to changes in vacation entitlements, which will be increased to the following:

  1. After 1 year of service – 2 weeks and 4 percent vacation pay (unchanged)
  2. After 5 years of service – 3 weeks and 6 percent vacation pay (currently after 6 years)
  3. After 10 years of service – 4 weeks and 8 percent vacation pay (new entitlement)

Holiday Pay: The change eliminates the 30-day service requirement for holiday pay. Also, holiday pay is now calculated as equal to at least 1/20 of the employee's wages (excluding overtime earnings) for the 4-week period immediately preceding the week in which the holiday occurs.

Substitution of General Holidays: An employer is permitted to substitute any other day of work for a general holiday if the substitution has been approved by an employee in writing, or in the case of a substitution that affects more than one employee, by at least 70 percent of the affected employees, or by the employees' trade union.

Continuity of Employment

Deemed Continuity of Employment: There have been changes to the Code provisions that deem employment to be continuous where an employee is employed in connection with a federal work or undertaking. These provisions will now apply to situations in which the transfer has been from a provincially regulated employer to a federally regulated employer. They will also apply in situations where work is being transferred through a retendering process by which a second employer performs services for the federal work carried out by a first employer.

Responding to the Changes After September 1, 2019: What Employers Can Expect

Employers may need to review policies and procedures to reflect changes specific to personal leave days and vacation entitlement.

Personal Leave Days: Federal regulators have supported the view that an employee will be entitled to the full annual personal leave entitlement for what remains of the 2019 calendar year. That means an employee will be entitled to 5 personal days (3 paid) that can be taken between September 1 and December 31, 2019. There is no consideration for the fact that eight months of the year have passed. This may represent an unforeseen cost for an employer that must track new types of leave and paid days based on the new annual maximums. That said, an employer with an existing policy providing paid sick leave or paid personal leave may be able to leverage such plans to avoid the pyramiding of the new days on top of those already provided.

Vacation Entitlements: Federal regulators have advised that an employer must start accruing at the new vacation percentage rates based on length of service on all eligible earnings starting September 1, 2019. For example, the accrual for an employee with greater than 10 years of service must be at least 8 percent for the vacation year, which includes September 1, 2019.

There has been less guidance provided regarding vacation time and many remain puzzled as to whether an extra vacation week is available to a qualifying employee for the current vacation year. We continue to track this issue.

Final Thoughts

It is anticipated that federal regulators will soon update any related publications to reflect these sweeping changes. Guidance and/or interpretation materials relating to these changes are also expected in order to allow federally regulated employers sufficient time to review impacted workplace policies and procedures.

Ogletree Deakins will continue to monitor developments with regard to the Canada Labour Code and will provide updates regarding the implementation of key changes.

Stephen Shore is a partner is the Toronto office of Ogletree Deakins.

Jordan Romano is a 2019 graduate of the University of Western Ontario Faculty of Law and is currently an articling student awaiting admission to the Law Society of Ontario.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Practice Guides
by Mondaq Advice Centres
Relevancy Powered by MondaqAI
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions