Bill C-3, An Act to amend the Criminal Code and the Canada Labour Code, received Royal Assent on December 17, 2021. The Bill provides workers covered by the Canada Labour Code with up to 10 days of paid medical leave of absence in a calendar year, as well as eight (8) weeks of bereavement leave in the event of the death of a child or a stillbirth. It also adds new various provisions to the Criminal Code aimed at preventing the intimidation of health care workers and those seeking access to health services.
Canada Labour Code Amendments
Medical Leave of Absence
The Bill amends the Canada Labour Code to provide employees with a maximum of 10 days of medical leave of absence with pay per calendar year.
For employees whose employment began on or before the coming into force of the new provision, in the calendar year in which the provision comes into force, they will earn three (3) days of medical leave of absence with pay after 30 days of continuous employment with the employer. The Government of Canada’s backgrounder clarifies that this means that the three (3) days are earned 30 days after the provisions come into force. After 60 days of continuous employment with the employer, employees will earn one (1) day of medical leave of absence with pay at the beginning of each month, to a maximum of 10 days in a calendar year.
For employees whose employment begins after the day on which the provisions come into force, in the calendar year during which they were employed, they will earn three (3) days of paid medical leave of absence after completing 30 days of continuous employment. After 60 days of continuous employment, employees will earn one (1) day of medical leave of absence with pay at the beginning of each month, up to a maximum of 10 days in a calendar year.
In each subsequent calendar year, employees will earn one (1) day of medical leave of absence with pay at the beginning of each month after completing one (1) month of continuous employment, to a maximum of 10 days.
Employees will be permitted to carry over each day of unused medical leave of absence with pay to the next calendar year. However, each day carried over will count towards the 10-day maximum in the new calendar year.
While the leave can be taken in one (1) or more periods, employers are entitled to require that each period of leave be no less than one (1) day’s duration.
Employers may require the employee to provide a certificate from a health care practitioner certifying that the employee was incapable of working for the period of the medical leave of absence, but only for a medical leave of absence with pay that was at least five (5) consecutive days long. Employers must request the certificate no later than 15 days after the employee’s return to work.
For a medical leave of absence without pay, an employer may require the employee to provide a certificate issued by a health care practitioner for a leave that is three (3) days or longer.
The amendments also provide an eight (8) week bereavement leave in the event of the following:
- The death of the child of the employee or the child of the employee’s spouse or common-law partner; or
- A stillbirth experienced by the employee or their spouse or common-law partner, or where they would have been a parent of the child born as a result of the pregnancy, as “parent” is defined in the Canada Labour Code.
The bereavement leave and medical leave of absence provisions will come into force by Order in Council.
Criminal Code Amendments
Bill C-3 adds new language to the Criminal Code that makes it an offence to engage in any conduct with the intent to provoke a state of fear in:
- A person in order to impede them from obtaining health services from a health professional;
- A health professional in order to impede them in the performance of their duties; or
- A person, whose functions are to assist a health professional in the performance of the health professional’s duties, in order to impede that person in the performance of those functions.
A health professional is defined as “a person who is entitled under the laws of a province to provide health services.”
It is also an offence for someone, without lawful authority, to intentionally obstruct or interfere with another person’s lawful access to a place at which health services are provided by a health professional.
It is not an offence for someone to attend at or near, or approach, a place at which health services are provided by a health professional only for the purpose of obtaining or communicating information. In its backgrounder on the new law, the Government of Canada indicated that it will therefore not be an offence where someone “is peacefully protesting or communicating information, such as on a picket line outside a health facility, even if that has a minor impact on the ability of others to access the facility.”
For these new offences, prosecutors will have the option to proceed by way of summary conviction for less serious cases, or indictment for more serious cases. The maximum penalty on summary conviction is imprisonment of two (2) years less a day, while the maximum penalty on indictment is 10 years’ imprisonment. Courts will be required at sentencing to consider the aggravating factor of whether offenders targeted health care workers carrying out their duties providing health services or impeded others from obtaining health services.
These provisions came into force on January 16, 2022.
In Our View
The pandemic has highlighted the issue of worker access to paid sick leave, and the legislation is a response to those concerns. Employers will need to be aware of their amended obligations once the provisions are in force. Employers are urged to seek advice as to their obligations, particularly if they have collective agreements or employment agreements with potentially more generous provisions that may prevail over these new provisions. The provisions may also raise other issues, such as potential difficulty with leave management resulting from the inability of employers to require medical certificates for shorter periods of leave.
As for the Criminal Code amendments, many health care workers have been vocal about their experience of harassment and intimidation in the course of their work, particularly during the pandemic. There have been recent calls for stronger protections for health care workers and for those seeking health services, and the amendments are a response to those concerns. Employers have an obligation to protect the health and safety of their workers, and these provisions provide additional support for employers to carry out that obligation.