Federal Government Announces Release of New Regulations to Support the Implementation of Paid Sick Leave under the Canada Labour Code

Regular Focus Alert readers will recall that on December 17, 2021, Bill C-3, An Act to amend the Criminal Code and the Canada Labour Code received royal assent. Among other things, the Bill amends Part III (Labour Standards) of the Canada Labour Code (the “Code”) to provide federally regulated private sector workers with up to 10 days of paid sick leave. Subsequently, on June 23, 2022, Bill C-19, An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measures, which introduced certain amendments to Bill C-3, also received royal assent. Both of these pieces of legislation will now be coming into force on December 1, 2022 with the help of recently released supporting regulations.

New Paid Sick Leave Entitlement

As of December 1, 2022, employees in the federally regulated private sector will be entitled to up to 10 days of paid sick leave – also referred to as medical leave with pay – per calendar year. All employees will be entitled to paid sick leave, including part-time, casual and contract employees, as well as employees engaged in multi-employer employment, for any of the following reasons: personal illness or injury, organ or tissue donation, medical appointments during working hours, or quarantine of the employee. Like other statutory leaves available under the Code, paid sick leave is a job-protected leave.

For details on accrual, carry-over rules and other pertinent information related to paid sick leave under the Code, please see our previous Focus Alerts on Bill C-3 and Bill C-19.

It is important to note that as of December 1, 2022, in order to avoid duplication, the Code will be amended to remove treating an employee’s illness or injury from the reasons for which personal leave may be taken. Accordingly, an employee will no longer be able to take personal leave for those purposes, but will instead be able to take paid sick leave.

Additionally, as with other statutory entitlements under the Code, the new paid sick leave entitlement is a minimum standard. As a result, if an employer already provides its employees with a greater benefit than the new paid sick leave, that leave or benefit will be considered to meet the minimum . To assist employers in determining how any existing benefits will interact with the new paid sick leave entitlement, the Labour Program has published an IPG (Interpretations, Policies and Guidelines) document on the issue of stacking. In particular, the IPG notes that periods of paid sick leave taken under the terms of a collective agreement or employment contract will count towards an employee’s entitlement to paid sick leave under the Code if all of the following criteria are satisfied:

  • The employee can take the leave provided for under the collective agreement or employment contract for one or more of the reasons listed above.
  • The employee may take the leave in one or more periods. The employer may require that each period of leave be not less than one day’s duration.
  • The employer does not require that the employee provide a medical certificate if they are absent for fewer than 5 consecutive days.
  • The employee is entitled to:
    • Receive their regular rate of wages for each day of the leave,
    • Maintain and accumulate pension, health and disability benefits, as well as seniority, during the leave, and
    • Be reinstated after the end of the leave.

New Supporting Regulations

Following a period of consultation with stakeholders, on November 7, 2022, Minister of Labour, Seamus O’Regan Jr., announced that the new regulations intended to support the implementation of this new paid sick leave entitlement were now available.

The final Regulations Amending Certain Regulations Made Under the Canada Labour Code (Medical Leave with Pay) outline essential elements of the new paid sick leave provisions, including the following:

  • As of December 31, 2022, employees who have been continuously employed for at least 30 days will have access to their first 3 days of paid sick leave. As of February 1, 2023, employees will acquire a fourth day and will continue to accumulate 1 day a month up to a maximum of 10 days per year.
  • Employers can request a medical certificate if an employee is absent for 5 days or more in a row.
  • Employees on paid sick leave who are paid on a basis other than time, such as salespeople paid by commission, will be entitled to the regular rate of wages. The method used to calculate the regular rate of wages will be consistent with the one used for personal leave.

The new regulations also introduce record-keeping requirements related to each period of paid sick leave, provide that employers who use a year other than a calendar year to calculate annual vacations must use that same year to calculate paid sick leave entitlements, classify violations of the paid sick leave provisions for the purposes of the Code’s administrative monetary penalties (or “AMP”) regime, and make other minor changes of a technical nature to ensure alignment with existing provisions in the Code and in regulations made under the Code.

 

In Our View

With the deadline for implementation of the new paid sick leave entitlement under the Code rapidly approaching, affected employers should take the time necessary in the coming weeks to ensure that they can comply with all related requirements. Notably, the Federal Government has announced its intention to hold information sessions in November for those that are interested. Check the Labour Program’s website regularly for more details.

For more information, please contact Steven Williams at 613-940-2759 or Lauren Jamieson at 613-404-5058.

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