Federal Government Tables Amendments to Incoming Canada Labour Code Medical Leave with Pay Provisions

On December 17, 2021, Bill C-3, An Act to amend the Criminal Code and the Canada Labour Code (“Bill C-3”), received Royal Assent.  As discussed in a previous Focus Alert, it provided workers covered by the Canada Labour Code (the “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.  These provisions are not yet in force.

On April 28, 2022, Bill C-19, An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measures (“Bill C-19”), was introduced in Parliament.  Bill C-19 passed second reading on May 10, 2022, and was referred to the Standing Committee on Finance for further consideration. If passed, Bill C-19 will make further amendments to the Medical Leave with Pay provisions outlined in Bill C-3.

Bill C-19 Amendments to Medical Leave with Pay Provisions

Under Bill C-19, employees will remain eligible to receive three (3) days of medical leave with pay after the completion of 30 days of continuous employment with the employer.  However, they will be able to earn one (1) day of medical leave with pay at the beginning of each month after the completion of only 30 days of continuous employment, instead of the original 60 days outlined in Bill C-3.

The maximum amount of medical leave with pay is maintained at 10 days per calendar year.  Employees will also still be able to carry over each day of unused medical leave of absence with pay to the next calendar year, and each day carried over will still count towards the 10-day maximum in the new calendar year.

While the leave can be taken in one (1) or more periods, employers remain entitled to require that each period of leave be no less than one (1) day’s duration.

Employers are able to require an employee to provide a certificate issued by a health care practitioner certifying that the employee was incapable of working for the period of their medical leave of absence.  Employers are required to make such a request in writing, and must do so no later than 15 days after an employee who takes a medical leave of absence of at least five (5) consecutive days returns to work.  The employer’s ability to request a certificate was previously subject to different timelines for medical leaves of absence with pay and without pay, but the amended language makes no distinction between the two.

Bill C-19 also amends the provisions regarding the Governor in Council’s ability to make regulations modifying Medical Leave with Pay provisions.  The Governor in Council may make such regulations in respect of the timing of when medical leave with pay is earned, the maximum amount of medical leave with pay earned in a calendar year, and the carrying forward of medical leave with pay if, in its opinion, employees or classes of employees remain entitled to periods of medical leave with pay that are substantially equivalent to 10 days of medical leave with pay in a calendar year despite the modification.

Importantly, Bill C-19 adds that the Medical Leave with Pay provisions apply to an employer and its employees beginning on the first day on which, as of the day on which the section outlining this requirement comes into force, the employer has 100 or more employees, even if the number of employees falls below 100 after that first day.  For those employers who are not covered by the medical leave with pay provisions, Bill C-19 stipulates that paragraph 206.6(1)(a) of the Code, personal leave of up to five days in a calendar year for the purposes of treating illness or injury (though there are also other available reasons for personal leave), will continue to apply.

Bill C-19 indicates that section 189 of the Code applies for the purposes of the Medical Leave division.  Generally speaking, that section deals with the transfer of a federal work, undertaking, or business (or any part thereof) between employers through processes such as sales, mergers, or retendering, and outlines when an employee’s employment in connection with the operation of the work, undertaking, or business is deemed to be continuous.

Bill C-19 provides that the medical leave with pay provisions, as well as the bereavement leave provisions as outlined in Bill C-3, will come into force on a day to be fixed by the Governor in Council, but no later than December 1, 2022.  The provision outlining the 100-employee threshold will come into force on a day to be fixed by the Governor in Council.

In Our View

Federally regulated employers who have been awaiting the coming into force of the medical leave with pay provisions should become familiar with these new amendments so that they are aware of what will apply if Bill C-19 is passed.  Emond Harnden will continue to monitor the development of this issue so that we can update employers once the amended medical leave with pay and bereavement leave provisions are in force.

For more information, please contact Colleen Dunlop at 613-940-2734, Steven Williams at 613-940-2737, or Lauren Jamieson at 613-404-5058.