Bill C-4, An Act relating to certain measures in response to COVID-19 - Senate Committee of the Whole, October 1, 2020

Table of Content

  1. Overview – Canada Labour Code
  2. Clause-by-clause – Canada Labour Code [Section redacted]
  3. Key messages – Canada Labour Code
  4. Questions and Answers – Canada Labour Code

Part 2: Amendments to the Canada Labour Code

Overview

Part 2 amends Part III (Labour Standards) of the Canada Labour Code (Code)to ensure that employees in the federally regulated private sector can continue to access job-protected leave from work if they are sick or self-isolating due to COVID-19 or if they have caregiving responsibilities related to COVID-19.

More specifically, this Part amends the leave related to COVID-19 under Part III of the Code so that it can be taken:

  • for up to 2 weeks at a time, as many times as necessary, if an employee is unable to work because:
    • they have contracted or might have contracted COVID-19
    • they have underlying conditions, are undergoing treatments or have contracted other sicknesses that, in the opinion of a medical practitioner, nurse practitioner, person in authority, government or public health authority, would make them more susceptible to COVID-19; or
    • they have isolated themselves on the advice of their employer, a medical practitioner, a nurse practitioner, a person in authority, a government or a public health authority for any reason related to COVID-19; and
  • for up to 26 weeks in total, if an employee is unable to work because they need to care for a child who is under 12 years of age or a family member who requires supervised care, because:
    • they have contracted or might have contracted COVID-19
    • their school, day program or other facility is, for reasons related to COVID-19, closed, open only at certain times or open only for certain persons
    • they cannot attend their school, day program or other facility under the advice of a medical practitioner or nurse practitioner due to being in isolation because they have contracted or might have contracted COVID-19, or because they are at high risk of having serious health complications if they contracted COVID-19; or
    • the person or the care service that usually provides care is not available for reasons related to COVID-19

These amendments will allow employees in the federally regulated private sector to avail themselves of the proposed Canada Recovery Sickness Benefit and Canada Recovery Caregiving Benefit without fear of losing their job.

The amendments also create a regulation-making power that would allow the Government to suspend or modify the requirement to provide a medical certificate to access certain entitlements under Part III of the Code. The existing waiver of the requirement for employees to provide medical certificates when accessing medical leave, compassionate care leave, and leave related to critical illness is scheduled to be repealed on September 30. This regulation-making power would allow the Government to reintroduce the waiver if it is deemed necessary to reduce strain on the healthcare system and make it easier for employees to access the job-protected leave they need.

Clause-by-clause [Entire section redacted]

Key messages

Issue

Ensuring that employees in the federally regulated private sector have access to job-protected leave under the Canada Labour Code so that they can avail themselves of the Canada Recovery Sickness Benefit and the Canada Recovery Caregiving Benefit proposed under the Canada Recovery Benefits Act.

Talking point

  • Since the beginning of the COVID-19 pandemic, the Government of Canada has put Canadians first, providing the support they need to continue to make ends meet while staying safe and healthy. As we gradually and safely restart our economy, the Government is continuing to support Canadians through the next phase of the recovery
  • The Government of Canada is transitioning away from the Canada Emergency Response Benefit to a simplified Employment Insurance program and is creating 3 new benefits: the Canada Recovery Benefit, the Canada Recovery Sickness Benefit and the Canada Recovery Caregiving Benefit
  • In order to ensure that federally regulated employees have access to job-protected leave, the Government of Canada is moving forward with amendments to the Canada Labour Code so these employees can avail themselves of the Canada Recovery Sickness Benefit and the Canada Recovery Caregiving Benefit
  • The Canada Labour Code amendments will modify the existing leave related to COVID-19 and extend its availability until September 25, 2021. These are temporary measures to help Canadians overcome the many challenges they face as a result of the COVID-19 pandemic

Questions and answers

Q. What does Part III of the Canada Labour Code cover and to whom does it apply?

A. Part III of the Canada Labour Code establishes minimum working conditions in federally regulated sectors, such as hours of work, minimum wages, annual vacations, leaves, termination of employment and severance pay.

Federally regulated sectors include about 955,000 employees (or 6% of all Canadian employees) working for 18,500 employers in industries such as banking, telecommunications, broadcasting and inter-provincial and international transportation (including air, rail, maritime, and trucking), as well as federal Crown corporations and certain activities on First Nations reserves.

Part III does not apply to the federal public service. The proposed amendments would therefore not apply to it.

Q. Why is the leave related to COVID-19 being amended?

A. On August 20, 2020, the Government announced its plan to transition away from the Canada Emergency Response Benefit to the Employment Insurance program and the creation of 3 new Canada Recovery benefits: the Canada Recovery Benefit, the Canada Recovery Sickness Benefit and the Canada Recovery Caregiving Benefit. The proposed amendments to Part III of the Canada Labour Code would allow employees in the federally regulated private sector to avail themselves of the proposed Canada Recovery Sickness Benefit and Canada Recovery Caregiving Benefit.

Q. What amendments are being proposed to the leave related to COVID-19 under Part III (Labour Standards) of the Canada Labour Code?

A. The proposed amendments to Part III of the Canada Labour Code would amend the leave related to COVID-19 to ensure that employees in the federally regulated private sector can continue to access job-protected leave from work if they are sick or self-isolating due to COVID-19 or if they have caregiving responsibilities related to COVID‑19.

More specifically, this Part amends the leave related to COVID-19 under Part III of the Code so that it can be taken:

  • for up to 2 weeks at a time, as many times as necessary, if an employee is unable to work because:
    • they have contracted or might have contracted COVID-19
    • they have underlying conditions, are undergoing treatments or have contracted other sicknesses that, in the opinion of a medical practitioner, nurse practitioner, person in authority, government or public health authority, would make them more susceptible to COVID-19; or
    • they have isolated themselves on the advice of their employer, a medical practitioner, a nurse practitioner, a person in authority, a government or a public health authority for any reason related to COVID-19; and
  • for up to 26 weeks in total, if an employee is unable to work because they need to care for a child who is under 12 years of age or a family member who requires supervised care, because
    • they have contracted or might have contracted COVID-19
    • their school, day program or other facility is, for reasons related to COVID-19, closed, open only at certain times or open only for certain persons
    • they cannot attend their school, day program or other facility under the advice of a medical practitioner or nurse practitioner due to being in isolation because they have contracted or might have contracted COVID-19, or because they are at high risk of having serious health complications if they contracted COVID-19
    • These amendments would allow employees in the federally regulated private sector to avail themselves of the newly created Canada Recovery Sickness Benefit and Canada Recovery Caregiving Benefit without fear of losing their job

Q. What amendments are being proposed to the medical certificate waiver under Part III of the Canada Labour Code?

A. The proposed amendments create a regulation-making power that would allow the Government to suspend or modify the requirement to provide a medical certificate to access certain entitlements under Part III of the Code. The existing waiver of the requirement for employees to provide medical certificates when accessing medical leave, compassionate care leave, and leave related to critical illness is scheduled to be repealed on September 30. This regulation-making power would allow the Government to reintroduce the waiver if it is deemed necessary to reduce strain on the healthcare system and make it easier for employees to access the job-protected leave they need.

Q. How long would the amended leave related to COVID-19 remain in place?

A. The leave related to COVID-19 is a temporary measure put in place to support employees while the COVID-19 pandemic is ongoing. It is scheduled to be repealed on September 25, 2021.

Q. Would the proposed changes ensure that federally regulated employees have access to 10 days of paid sick leave?

A. Yes. The Government of Canada is amending the Leave related to COVID-19 under Part III of the Canada Labour Code so that employees in the federally regulated private sector can avail themselves of the proposed Canada Recovery Sickness Benefit, which would provide eligible recipients with up to 2 weeks of income support should they fall ill or be required to self-isolate as a result of COVID-19.

Q. What does an employee need to do to access the amended leave related to COVID‑19?

A. The procedure an employee needs to follow in order to access the leave related to COVID-19 would not change. Employees who need to take the leave would need, as soon as possible, to provide their employer with written notice of the reason for the leave and the length of leave they intend to take. An employer could also require that an employee provide a written declaration in support of the reasons for the leave. There is no medical certificate requirement associated with this leave.

Q. Why can the leave related to COVID-19 be taken multiple times?

A. The leave related to COVID-19 was designed so that employees are able to access it multiple times, for up to 2 weeks at a time, if they are ill or required to self-isolate as a result of COVID-19. This is to ensure that employees who may have contracted the virus are not forced to choose between self-isolating at home and losing their jobs or going into work and potentially spreading the virus.

Note that employees who take the leave related to COVID-19 because they have caregiving responsibilities related to the pandemic are entitled to a total of 26 weeks of leave. An employee who has exhausted their 26 weeks is not entitled to additional leave for this purpose.

Q. What other leaves under the Canada Labour Code are available to employees affected by COVID-19?

A. Employees covered under Part III of the Canada Labour Code are entitled to take a number of job-protected leaves:

  • personal leave provides up to 5 days of leave per calendar year. This leave can be used to address urgent matters concerning an employee or their family members, including to treat an illness or injury. The first 3 days of personal leave must be paid if the employee has completed 3 months of service with the employer
  • medical leave provides for up to 17 weeks of unpaid, job-protected leave as a result of personal illness or injury, organ or tissue donation, or medical appointments during working hours
  • compassionate care leave provides up to 28 weeks of job-protected leave for employees who need to provide care and support to a family member who has a serious medical condition with a significant risk of death
  • leave related to critical illness provides employees with up to 37 weeks of job-protected leave to provide care or support to a critically-ill child, and up to 17 weeks of leave to provide care or support to a critically-ill adult

Q. Why is the Government reinstating the need to provide medical certificates to access certain leaves?

A. To ease the burden on health care systems and to ensure every sick employee is able to stay home, the Government temporarily waived the requirement for employees to provide medical certificates when accessing medical leave, compassionate care leave, and leave related to critical illness.

This waiver is scheduled to be repealed on September 30. This aligns with the reinstatement of corresponding medical certificate requirements to access sickness benefits, compassionate care benefits, and family caregiver benefits under the Employment Insurance program.

The proposed amendments would also create a regulation-making power that would allow the waiver to be reintroduced if there is considerable strain on the healthcare system or if requiring medical certificates for those leaves would impose an undue burden on employees. This would allow the Government to react quickly to any future second wave – ensuring that employees can have access to the leaves they need without further legislative amendments.

Q. When would the proposed amendments come into force?

A. The proposed regulation-making power would come into force on Royal Assent. If the legislation receives Royal Assent before October 1, 2020, the proposed amendments to the leave related to COVID-19 would come into force on October 2. If the legislation receives Royal Assent after October 2, 2020, the proposed amendments to the leave would be retroactive to October 2.

Q. Do stakeholders support the proposed amendments

A. Based on stakeholders’ reactions following the introduction of the leave related to COVID-19, and given the possibility of a second wave or significant outbreak, it is expected that employee and employer organizations would support the proposed amendments to the leave.

Q. Would the proposed amendments to the Canada Labour Code impact provincial and territorial labour standards legislation?

A. No. Responsibility for the regulation of labour matters is constitutionally divided between the federal, provincial and territorial governments.Changes to the leave provisions under the Canada Labour Code would therefore not apply to provincially and territorially regulated employers and employees.

Q.Would the proposed amendments to the Canada Labour Code impact collective agreements in federally regulated sectors?

A. Yes. Because collective agreements in unionized workplaces often spell out provisions related to the unpaid leaves that are provided under the Canada Labour Code, employers and unions could need to modify their agreements or otherwise reach an understanding as to how they would apply these changes in their workplaces.

Q. What financial implications would the proposed amendments to the Canada Labour Code have for the federal government?

A. The Labour Program estimates that the costs to the federal government to train Labour Program officers, produce educational materials, develop supporting regulations and monitor compliance by tracking complaint-related data would be negligible.

Q. How much would the proposed amendments to the Canada Labour Code cost employers?

A. It is difficult to estimate potential costs to employers, as this would depend on how many employees in the federally regulated private sector need use this leave to deal with the impacts of COVID-19, and for how long. To a large extent, this would depend on how the COVID-19 outbreak evolves within the coming months.

Though the leave is unpaid, some employers could need to hire replacement workers or pay overtime in order to compensate for employees’ absences.

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