Significant Changes to the Canada Labour Code Effective Sep 1: What Employers Need to Know..

Significant Changes to the Canada Labour Code Effective Sep 1: What Employers Need to Know..

It’s important for federally regulated businesses in Canada to stay abreast of amendments to the Canada Labour Code, which outlines and enforces the minimum labour standards for workplaces. Bill C-86 received Royal Assent late last year, and these changes are in effect as of September 1, 2019. For disability management and return to work professionals here are a few important areas to focus on in reading the bill:

  • Increases in leave provisions
  • Medical certificates and health care practitioners
  • The right to refuse work or take a leave of absence for certain pregnant employees
  • Breaks and rest periods, including breaks for medical reasons or nursing mothers
  • Leave provisions respecting maternity and parental leave, family illness leave, leave relating to the death and disappearance of a child, jury duty and court leave, medical leave and more

It is evident there is a major shift in policy with regard to labour standards and accessibility at the federal level. The government will be continuing to focus on reviewing several areas of the Canada Labour Code, and the Accessible Canada Act (Bill C-81). Stay informed of these changes, and adjust your policies appropriately, as the implications for employers are broad.

What Employers Should Know:

Personal Leave

When considering personal leaves it is important to have accurate and detailed policies and procedures to help employees understand your process and roles and responsibilities.

206.6 (1) Every employee is entitled to and shall be granted a leave of absence from employment of up to five days in every calendar year for

(a) treating their illness or injury;

(b) carrying out responsibilities related to the health or care of any of their family members;

(c) carrying out responsibilities related to the education of any of their family members who are under 18 years of age;

(d) addressing any urgent matter concerning themselves or their family members;

(e) attending their citizenship ceremony under the Citizenship Act; and

(f) any other reason prescribed by regulation.

Leave without pay:

(2) If the employee has completed three consecutive months of continuous employment with the employer, 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, and such pay shall for all purposes be considered to be wages.

Division of leave:

(3) The leave of absence may be taken in one or more periods. The employer may require that each period of leave be of not less than one day’s duration.

Documentation:

(4) The employer may, in writing and no later than 15 days after an employee’s return to work, request that the employee provide documentation to support the reasons for the leave. The employee shall provide that documentation only if it is reasonably practicable for them to obtain and provide it.

Harassment

There are significant changes to the labour code with respect to Harassment and Violence. We would recommend that all employers review those changes and ensure that they have appropriate prevention strategies in place, a harassment and violence policy, education programs implemented, have violence risk assessments completed, and a process to manage complaints in an objective and timely manner.

0.1 Subsection 122 (1) of the Canada Labour Code is amended by adding the following in alphabetical order:

Harassment and violence means any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment; (harcèlement et violence)

Qualified Medical Practitioner

The definition of a qualified medical practitioner has been redefined and it is important that your internal policies define what is acceptable in your procedures with respect to provision of documentation from a qualified medical practitioner. For example, in Ontario there are over 26 regulated health professionals. Which ones might you wish to gain information from when dealing with leaves of absences? We would suggest wording that would define this and indicate that the medical practitioner would be regulated under the RHPA and treat the appropriate condition for which the leave is being requested. For example, a physiotherapist or chiropractor for a musculoskeletal condition and a psychologist or occupational therapist for a mental health condition.

442 (1) The definition qualified medical practitioner in section 166 of the Act is repealed.

(2) Section 166 of the Act is amended by adding the following in alphabetical order:health care practitioner means a person lawfully entitled, under the laws of a province, to provide health services in the place in which they provide those services. (professionnel de la santé)

Breaks for Medical Reasons or Nursing

The Canada labour code now includes the provision of breaks for medical reasons. You will want to consider your procedures for verifying the need for breaks. We would suggest an accommodation assessment to ensure the appropriate use and approach to breaks for medical reasons.

Medical break:

181.1 (1) Subject to the regulations, every employee is entitled to and shall be granted any unpaid breaks that are necessary for medical reasons.

(2) On written request by the employer, the employee must provide a certificate issued by a health care practitioner setting out the length and frequency of the breaks needed for medical reasons and any additional information that may be prescribed by regulation.

487 Section 239 of the Act and the heading of Division XIII before it, are replaced by the following:

Medical Leave

The Canada Labour code defines the length of medical leave of absences.  We would suggest that you update your procedures for medical absences to ensure that you can continue to manage the offering of modified work and return to work planning.

Entitlement to leave:

239 (1) Every employee is entitled to and shall be granted a medical leave of absence from employment of up to 17 weeks as a result of

(a) personal illness or injury;

(b) organ or tissue donation; or

(c) medical appointments during working hours.

(2) If a medical leave of absence is three days or longer, the employer may require that the employee provide a certificate issued by a health care practitioner certifying that the employee was incapable of working for the period of time that they were absent from work.

How can Gowan Consulting Assist?

  • Gowan can provide you with support to update your policies and procedures to be in line with the new code.
  • Gowan can provide accommodation assessments to support accurate and manageable accommodations on return to work or breaks and alternate work adjustments for those who stay at work when dealing with medical issues.
  • Gowan can support the provision of prevention strategies for harassment and violence in the workplace including violence risk assessments, education and training and support to reintegrate employees who have felt harassed at work.
  • Check out our workshops and webinars

Works cited:

Major Changes Coming to the Canada Labour Code, By Michael D.A. Ford, QC & Elise Calvert, https://www.dlapiper.com/en/canada/insights/publications/2019/02/major-changes-coming-to-the-canada-labour-code/ 

Canada’s First Accessibility Legislation Comes into Force:

https://www.canada.ca/en/employment-social-development/news/2019/07/canadas-first-federal-accessibility-legislation-comes-into-force.html

“Times they are a-changin’” for federally regulated workplaces: significant amendments to Canada Labour ‎Code and accessibility legislation coming into effect, By Dana F. Hooker on August 30, 2019 https://www.canadainfocus.com/2019/08/amendments-to-canada-labour-%e2%80%8ecode-and-accessibility-legislation-coming-into-effect/#page=1

More insights on the Canada Labour Code from Justice Laws Website, Government of Canada:

https://laws-lois.justice.gc.ca/eng/acts/L-2/nifnev.html

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