Federally regulated employees will soon have new rights related to temporary leaves of absence, including in the event of pregnancy loss, adoption or surrogacy placement, as well as access to enhanced bereavement leave entitlements. These changes are brought about by the Fall Economic Statement Implementation Act, 2023 (“FESIA 2023” or “Bill C-59”), which received Royal Assent on June 20, 2024, and which included amendments to Part III (Labour Standards) of the Canada Labour Code (“Code”).
Of note, the amendments pertaining to the new leave related to pregnancy loss and to the expansion of existing bereavement leave entitlements will come into force on December 12, 2025. For its part, the new leave for placement of a child is projected to come into effect at some point in 2026.
New Leave Related to Pregnancy Loss
Bill C-59 introduced a new leave entitlement for employees who experience a pregnancy loss, whose spouse or common-law partner experiences a pregnancy loss, or who are intended to be the legal parent of the child that would have been born to another person had that person’s pregnancy resulted in a live birth (such as a surrogate).
Eligible employees will be able to take leave for up to three (3) days, or if the pregnancy resulted in a stillbirth, up to eight (8) weeks, within the 26 week-period following the date of the pregnancy loss. If the employee has completed three (3) consecutive months of continuous employment with the employer, they will be entitled to be paid for the first three (3) days of leave at their regular rate of pay for their normal hours of work.
The amendments to the Code specifically include definitions of the following terms for the purposes of determining eligibility for and entitlement to the new leave related to pregnancy loss:
- “Common-law partner” means a person who is cohabiting with the employee in a conjugal relationship, having so cohabited for a period of at least one (1) year;
- “Stillbirth” means the complete expulsion or extraction of a foetus from a person on or after the 20th week of pregnancy or after the foetus has attained at least 500 grams, without any breathing, beating of the heart, pulsation of the umbilical cord or movement of voluntary muscle from the foetus after the expulsion or extraction.
Additional details regarding the new leave related to pregnancy loss, including provisions addressing pregnancies with multiples, can be found in Division 2 of FESIA 2023.
Enhanced Bereavement Leave Entitlements
Currently, the Code provides employees with up to 10 days of bereavement leave following the death of an immediate family member, or that of a family member for whom the employee was taking compassionate care leave or critical illness leave. Eligible employees are entitled to be paid for the first three (3) days of the leave if they have completed at least three (3) consecutive months of employment with the employer.
Amendments to the Code will permit employees to take up to eight (8) weeks of bereavement leave in the event of the death of their child or of the child of their spouse or common-law partner. Eligible employees will continue to be entitled to be paid for the first three (3) days of the leave if they have completed at least three (3) consecutive months of employment.
Employees on bereavement leave will also be entitled to the rights typical of other long-term leaves of absence under the Code, including the right to reinstatement to the same or to a comparable role, the right to the retention of benefits, the right to change leave duration with adequate notice, and the right to receive notice of employment opportunities. Furthermore, employers will be prohibited from taking the employee’s leave into account when making promotion or training decisions.
Additional details regarding the enhanced bereavement leave entitlements can be found in Division 2 of FESIA 2023.
New Leave for Placement of a Child
Bill C-59 also introduced a new job-protected leave entitlement for employees to carry out their responsibilities following the placement of a child into their care through adoption or surrogacy.
Pursuant to the amendments to the Code, eligible employees will be able to take up to sixteen (16) weeks of unpaid leave during the period:
- beginning no earlier than six (6) weeks before the week of the estimated date of the placement or, if the actual date of the placement is earlier than the estimated date, no earlier than the week of that actual date; and
- ending no later than seventeen (17) weeks following the week of the actual date of that placement.
This new leave provision aligns with related amendments to the Employment Insurance Act, which provide a new fifteen (15) week benefit for employees who become new parents through adoption or surrogacy. The additional week of leave considers the waiting period applicable prior to receipt of Employment Insurance benefits.
Additional details regarding the new leave for placement of a child, including provisions addressing delayed placements and the hospitalization of the child, can be found in Division 12 of FESIA 2023.
Related Regulatory Changes
To support the implementation of these new provisions, FESIA 2023 will also amend the Canada Labour Standards Regulations and the Standards for Work-Integrated Learning Activities Regulations, as well as make administrative monetary penalties under the Administrative Monetary Penalties (Canada Labour Code) Regulations applicable to violations.
Canada Labour Standards Regulations
Changes to the Canada Labour Standards Regulations will also come into effect on December 12, 2025 and primarily address wage calculation methods and record-keeping responsibilities, as well as certain housekeeping matters.
As it relates to wage calculation methods, paid leave related to pregnancy loss will be treated the same way as all other paid leaves for the purposes of the calculating overtime pay: any days of paid leave will be removed from the employee’s standard hours of work when they are subject to an averaging period. The formula currently used for determining an employee’s wages when taking paid leave will also be made applicable to the determination of wages owed when an employee takes leave related to pregnancy loss. In addition, wages resulting from leave related to pregnancy loss and medical leave will not impact wages owed to an employee when they attend an appeal proceeding at the summons of the Canada Industrial Relations Board during the time they otherwise would have been at work. Finally, wages resulting from leave related to pregnancy loss, medical leave, personal leave and leave for victims of family violence will not impact wages owed for certain benefits provided by the Code.
A far as record-keeping responsibilities are concerned, employers will be required to keep records of the amounts paid in relation to leave for pregnancy loss and of any change in length of bereavement leave, as well as copies of any notice received in respect of the latter. Furthermore, employers will be required to include “leave related to pregnancy loss” and “leave for placement of child” on a list of labour standard provisions that they are required to share with employees.
The administrative changes made to the regulations relate, amongst other things, to the updating of terminology throughout, including by changing the term “medical certificate” to “certificate from a health care practitioner” and changing the term “sick leave” to “medical leave.”
Standards for Work-Integrated Learning Activities Regulations
Changes to the Standards for Work-Integrated Learning Activities Regulations will extend the new leave related to pregnancy loss and the enhanced bereavement leave provisions, without related payment entitlements, to student interns (as applicable).
Administrative Monetary Penalties Regulations
Finally, the list of provisions under Part III of the Codeand under the Canada Labour Standards Regulation for which an administrative monetary penalty (“AMP”) can be issued under the Administrative Monetary Penalties (Canada Labour Code) Regulations will be amended.
As a result, the Labour Program will be permitted to issue AMPs if an employer:
- Commits any of the following Type B violations (Penalty of $2,000 to $10,000 for individuals and $20,000 to $50,000 for corporations):
- Failing to pay an employee for their days off;
- Failing to continue an employee’s benefit contributions while they are on bereavement leave; and
- Preventing an employee on bereavement leave from accessing any income-replacement or insurance plan to which they are entitled; or
- Commits any of the following Type C violations (Penalty of $5,000 to $25,000 for individuals and $25,000 to $100,000 for corporations):
- Denying an employee their right to take leave related to pregnancy loss, leave for placement of a child, or bereavement leave for up to eight (8) weeks in response to the death of their child or the child of their spouse or common-law partner;
- Failing to provide an employee with notice of employment opportunities while on bereavement leave;
- Failing to reinstate an employee in the same or similar position after bereavement leave;
- Failing to adjust the wages or benefits of an employee on bereavement leave if the wages or benefits of employees within the same class of employees have changed during the leave;
- Failing to notify an employee of changes to wages or benefits to the class of employees to which they are a member;
- Preventing an employee from accumulating benefits;
- Dismissing, suspending, laying off, demoting or disciplining an employee for exercising their right to take bereavement leave; and
- Taking the employee’s bereavement leave into account when making promotion or training decisions.
In Our View
With the new leave related to pregnancy loss and the expansion of existing bereavement leave entitlements coming into force at the end of this week, employers should take immediate steps to update their policies, payroll systems and record-keeping practices to ensure compliance.
For more information, please contact Lauren Jamieson at (613) 404-5058 or Sophie Kassel at (613) 410-6115.
