If Not Now, Then Soon: Upcoming Federal Updates on Right to Disconnect, Paid Medical Leave and Bereavement Leave | Stikeman Elliott LLP

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The federal government recently released its final report on the right to disconnect. Although federal legislation regarding the right to disconnect has yet to be tabled, the government has engaged with federally regulated employers on how best to implement a mandate on this issue.

In addition, Bill C-3, An Act to amend the Criminal Code and the Canada Labor Code (“Bill C-3”), received Royal Assent on December 17, 2021. We previously had summarized Bill C-3 when it was at third reading. Bill C-3 provides new rights to paid sick leave and bereavement leave.

We have provided a brief summary of these federal updates, as well as next steps for federally regulated employers with respect to the Right to Disconnect Final Report and Bill C-3.

Report on the right to disconnect

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With the increase in the number of employees working from home over the past two years and the blurring of boundaries between work and personal life, governments are turning their attention to the work-life balance of employees and on the importance of disconnecting from work. from Ontario Bill 27: Labor for Workers Act 2021That we have written on in this blog, was the first of its kind legislation in Canada and requires Ontario provincially regulated employers with 25 or more employees to have a written right to disconnect policy by June 2, 2022.

The federal government is following suit with its recent publication, the Final Report of the Right to Disconnect Advisory Committee (the Report”). Below, we have provided the report’s key findings and recommendations, along with an overview of next steps for federally regulated employers.

Final report

The Right to Disconnect Advisory Committee (the “Committee”) undertook consultations with employers, unions and other federally regulated non-governmental organizations throughout 2021 and released the report in February 2022. The report includes a series of recommendations to the Federal Minister of Labour. of the different points of view of the employers within the committee. The report notes a number of commonalities between Committee members, including that:

  • employees should be paid for work performed;
  • establishing a positive work-life balance is a key goal for employers and employees;
  • there is a need for flexibility for both employees and employers;
  • it is necessary to protect health and safety, and there are certain situations where communication with employees is essential;
  • there is a need to recognize existing arrangements, such as collective bargaining relationships;
  • absolute limits (such as stopping mail servers or network access) may not be realistic in some situations;
  • recognize the varied nature of federal jurisdiction;
  • there is a need for clarity in everything that is implemented; and
  • it is necessary to protect the privacy and security of employees.

Areas where the unique views of Committee members diverged included the extent to which the federal government should intervene to address the issue of disconnected work. Although unions and other non-governmental organizations have recommended a strict legislative requirement for employers to implement a right to disconnect policy, employer groups have expressed the view that the federal government should not do it because the Canada Labor Code (“CTC”) already contains many hours of work provisions (we pause to note that the latter approach has been followed in Ontario). Employer groups also highlighted the need for the federal government to recognize that every workplace is different and expressed the view that a one-size-fits-all approach is not practical.

Next steps

The federal government is considering the recommendations made by the Committee. While there is currently no legal requirement for federal employers to introduce a right to disconnect policy, the report says it is likely that formal guidelines will be available soon. In the meantime, similar to the exercise we recommended for Ontario before Bill 27 came into force, federal employers should consider what a disconnected work policy might look like to their workplace taking into account, for example, the nature of the working arrangements (e.g., in-person, remote, hybrid), the composition of the workforce (e.g., hourly or salaried/professional, etc.) and the nature of their business.

Amendments to the Canada Labor Code (coming soon)

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The federal government’s Bill C-3 received Royal Assent on December 17, 2021. However, the law has not yet come into force, which means it is not yet in force. The federal government is currently engaging in consultations with federally regulated employers regarding the implementation of paid sick leave, and we will keep readers informed of any updates in this regard. We previous report on Bill C-3 in December 2021, before the legislation is passed.

Bill C-3 provides for paid sick leave and bereavement leave, as described below.

Sick days

Bill C-3 amends the CLC to provide 10 days of paid medical leave for federally regulated employees. The actual number of days an employee is entitled to will depend on the length of their continuous employment:

  • after 30 days of continuous employment with an employer, employees are entitled to a minimum of 3 days of paid sick leave;
  • after 60 days of continuous employment, at the beginning of each month, the employee will accumulate 1 day of paid sick leave, up to a maximum of 10 days per year; and
  • during each following calendar year, at the beginning of each month, the employee will accumulate 1 day of paid sick leave, up to a maximum of 10 days per year.

Employers may require an employee to provide a certificate issued by a medical professional stating that the employee was unable to work during the period of their medical leave if they have been absent for at least 5 consecutive days.

bereavement leave

The CLC’s bereavement provisions were amended earlier in 2021 to extend bereavement leave by 5 unpaid days, totaling 10 days of bereavement leave, with the first 3 days being paid, provided the employee has 3 continuous months employment with the employer. These changes came into effect on September 29, 2021.

Bill C-3 further amends the CLC’s bereavement leave provisions by providing leave of up to 8 weeks if an employee has experienced the death or stillbirth of their child or their spouse’s child or common-law partner. This leave can be taken during the period that begins on the day of death or stillbirth and ends 12 weeks after a funeral, memorial or burial, whichever is later.

Key takeaways for employers

Although Bill C-3 has received Royal Assent, the amendments to the CLC do not come into force until a date to be determined by order of the Governor in Council. At this time, we do not know when Bill C-3 will come into force, but we will let readers know as soon as more information becomes available on its progress.

Once Bill C-3 takes effect, federal employers will be required to provide employees with up to 10 days of annual paid sick leave, in addition to 3 days of annual paid personal leave and 2 days of unpaid annual staff already foreseen in the CTC. Federal employers should be prepared for these changes by working with payroll and unions, as appropriate, to make necessary adjustments to their payroll practices and (potentially) collective agreements. Employers should also consider reviewing their employment contract templates and workplace policies to ensure they comply with the new legislation once it takes effect.

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