On December 1, 2022, all private-sector, federally-regulated employers will be required to
follow the new Medical Leave with Pay regulations as set forth by the Canada Labour Code. This applies to all carriers who cross provincial or international borders. Although there has been some lobbying over the past year to consider a phased-in approach and to make exceptions for employers with fewer than 100 employees, neither has been realized. In essence, this means that this new legislative provision and regulations, in its entirety, will come into force on December 1 st for all interprovincial carriers, regardless of size.
Here are some highlights of the new provisions:
- All continuously employed employees are entitled to medical leave with pay. (This includes part-time, casual, and fixed-term contract employees) On December 31, 2022, once an employee has completed 30 days of continuous employment, they will be eligible for 3 days of paid medical leave. If unused, these days will be carried over to Jan 1, 2023. On February 1, 2023, the employee will acquire a fourth day and will continue to accumulate one day a month up to a maximum of 10 days per year.
- When there is no continuity of employment, as is the case with seasonal workers, neither maintenance of days nor accruals will apply. For example, when a seasonal employee begins work on June 1 st, the employee will earn accruals after 30 days of continuous employment and at the beginning of each subsequent month while employed. Once the contract has ended, the days earned will not be carried into the following season, nor will accrual continue while not employed.
- Employers will credit any unused days of medical leave with pay in a year to an employee at the beginning of the next year. Employers can credit up to a maximum of 10 days. This credit will count toward the maximum of 10 days that an employee can earn during the following year. Please note employers are not required to pay out any unused days at the end of an employment contract.
- The employer can request a medical certificate from a qualified healthcare practitioner if the employee is absent for 5 days in a row. (This request must be made in writing and no later than 15 days after the employee has returned to work). Under the code, the employee is also required to request medical leave in writing at least 4 weeks in advance, including the start date and possible duration. If something such as an unexpected illness or injury occurs, they are still required to submit the request in writing with the start date and expected duration.
- 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. If, however, the employer agrees, they can allow the time to be less than, and the payout and time can be adjusted accordingly.
- For example, if an employee wants to take two hours out of an eight-hour shift for a medical appointment, the employer can grant the leave and pay from the accrued medical leave with pay under the code.
- An employee is not permitted to take medical leave with pay on a day their employer does not schedule or expect them to be available for work. An employee can, however, interrupt a current leave to take medical leave and then resume the other leave covered under the code.
- Employees whose hours of work vary or who are paid on the basis other than time will be entitled to the regular rate of wages as set forth by the Code for other paid leaves such as general holidays, personal leave, etc.
- The Personal Leave provision under the Code and currently in force will be adjusted on December 1, 2022, to remove the reason for leave to include medical or personal injury. All other criteria for this Leave will remain the same.
- The employer is required to keep records of the following:
- Date of the leave (including start and end date),
- The year the leave was earned,
- The number of days carried over from the previous year,
- Copy of medical certificate requests made by the employer, and
- Copy of any medical certification submitted by an employee.
- There are administrative monetary penalties for employers who fail to comply with both
the medical leave requirements, as well as the record-keeping requirements.
There is no doubt employers are concerned over the financial and operational impact this will have on their businesses. It is important, however, to ensure you are fully aware of these new requirements and how to integrate them into your policies and practices.
In preparation for compliance, we suggest:
- Review the new medical leave with pay provided for in section 239 of Division XIII of Part III of the Canada Labour Code. The details of this can be found in the Canada Gazette, Part I, Volume 156, Number 29 at https://gazette.gc.ca/rp-pr/p1/2022/2022-07-16/html/reg1-eng.html For further clarity, please visit the Interpretations, Policies, and Guidelines pertaining to the new Medical Leave with Pay provisions, entitled Medical Leave with Pay IPG-118 at https://www.canada.ca/en/employment-social-development/programs/laws-regulations/labour/interpretations-policies/medical-leave-pay.html. Finally, the THRSC Atlantic has obtained the Paid Medical Leave PowerPoint from ESDC, which was presented in the information sessions given on November 15th (French version) and November 16th (English version) provides further guidance. Please contact the THRSC Atlantic office if you are interested in obtaining a copy.
- Carefully review your existing leave-related policies and procedures to determine whether changes will need to be made to ensure compliance with the new regulation. Pay particular attention to the wording in your policies and how you currently deal with accruals and carryovers into a new calendar year. If you already provide paid sick days under current employment contracts that do not align with the minimum requirements of the Code or if you have paid leave provided that goes beyond the fundamental scope of the Code’s Medical Leave with Pay (i.e., vacation floater days, family days, etc.), you will not be able to substitute these as meeting requirements under the Code.
- Educate your payroll personnel on the record-keeping requirements and what needs to be done for compliance.
- Provide notice to affected employees to avoid misinterpretations and misunderstandings regarding their entitlement which could lead to potential conflict in the future.
If you have any specific questions pertaining to this topic, please do not hesitate to contact THRSC Atlantic office for further guidance and support.