Personal leave – IPG-117
Effective date: September 1, 2019
Revised date: January 16, 2023
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This Interpretation, Policy and Guideline (IPG) intends to provide further guidance on the personal leave provided for in section 206.6, of Division VII of Part III of the Canada Labour Code (Code).
The following provision has been added to the Code:
There is a need to ensure a consistent interpretation of several principles involving section 206.6 at the national level. This IPG addresses the following:
- if an employer can schedule and mandate when an employee or student intern takes personal leave
- who decides what is considered “urgent” in instances where an employee or student must address an urgent matter concerning themselves or their family members
- if an employer can determine that documentation was reasonably practicable to obtain
- if an employer can add other qualifying conditions that an employee or student intern must meet before they take personal leave
- how this leave applies to an employee who is covered by a collective agreement or employment contract that already provides a similar type of leave
- how to calculate pay for personal leave when an employee’s hours of work differ from day to day or receives pay on a basis other than time
All federally regulated employees and student interns are entitled to personal leave of up to 5 days each calendar year. For those employees who have completed 3 consecutive months of continuous employment with their employer, the first 3 days of the leave are paid.
Scheduling personal leave
An employee or student intern can request personal leave when the request meets the requirements of the Code. The Code does not grant the employer authority to determine when an employee or student intern takes personal leave. When there are multiple leave entitlements available to an employee or student intern, only the employee or student intern may decide to categorize the leave as personal leave. Employers should not decide when their employees or student interns take personal leave.
An employee or student intern may take personal leave when addressing any urgent matter concerning themselves or their family members. The determination as to whether something is considered “urgent” falls to the employee or student intern. It is not appropriate for an employer to determine what may or may not be urgent in an employee’s or student intern’s circumstance. Only when the employee’s or student intern’s reason is clearly not urgent and it is obvious that abuse is occurring, would it be appropriate for an employer to deny a personal leave. The employer must give the benefit of doubt to the employee or student intern.
An employer may request that the employee or student intern provide documentation to support the reasons for personal leave. The employer must do so in writing and no later than 15 days after the employee’s or student intern’s return to work. The employee or student intern is only required to provide that documentation if it is reasonably practicable for them to obtain and provide it.
The decision as to whether or not it is reasonably practicable to obtain documentation falls to the employee or student intern. If it is not reasonably practicable to obtain and provide documentation, the employee or student intern can decide instead to write and sign a statement to indicate the circumstances that led to their absence. When the employee or student intern has provided their written statement for the leave, an employer cannot deny personal leave on the basis that the employee or student intern did not provide documentation. Further information on the meaning of “reasonably practicable” is available within IPG-098.
The qualifying conditions that an employee or student intern must meet to be eligible for personal leave are contained within section 206.6 of the Code. The reasons for which an employee or student intern can take personal leave under section 206.6 of the Code are the following:
- carrying out responsibilities related to the health or care of any of their family members
- carrying out responsibilities related to the education of any of their family members who are under 18 years of age
- addressing any urgent matter concerning themselves or their family members
- attending their citizenship ceremony under the Citizenship Act, and
- any other reason prescribed by regulation
The employee must have completed 3 consecutive months of continuous employment with the employer to be entitled to the first 3 days of the leave with pay. An employer cannot impose their own qualifying conditions on employees or student interns before employees or student interns can take personal leave. If an employee or student intern meets the qualifying conditions set out in the Code, the employer must allow the personal leave.
Collective agreements and employment contracts
For some employees, their collective agreement or employment contract provides for 5 or more days of personal leave (including at least 3 days with pay). These employees are not entitled to additional personal leave under the Code, if:
- the employee can take the leave in the collective agreement or contract of employment for any of the reasons listed in section 206.6 of the Code
- the employee can divide the leave in at least 5 periods of 1 day each
- the following are at least as beneficial for the employee as those under the Code:
- conditions for taking the leave
- the amount of pay for the leave
- the accrual and maintenance of insurance
- pension and other benefits during the leave, and
- the right for their employer to reinstate them in the same or a comparable position after the end of the leave
For some employees, their collective agreement or contract of employment provides for leave with pay that the employee can take for one, but not all, of the reasons covered by the Code’s personal leave. For example, family leave with pay. For these employees, if they have used fewer than 5 days of that leave in the calendar year, they can take personal leave under the Code to address other matters. For example, urgent matters concerning themselves or their family members. In these cases, the employee would be entitled to personal leave equal to 5 days less any days of leave taken.
Calculating personal leave pay entitlement for employees whose hours of work vary or who receive pay on a basis other than time
Section 17 of the Canada Labour Standards Regulations prescribes the method to calculate pay to which an employee is entitled for personal leave when the employee’s work hours differ from day to day or receive pay on a basis other than time. The employer calculates personal leave pay for these employees by taking the average of the employee’s daily earnings, exclusive of overtime hours, for the 20 days the employee has worked immediately preceding the first day of the period of paid leave.
An employee’s collective agreement can specify a different calculation method. The calculation method contained in the collective agreement must relate specifically to personal leave with pay. Methods of calculation for other leaves cannot be used to calculate personal leave payment.
The calculation method for personal leave is as follows:
- employee not covered by collective agreement or covered by a collective agreement that does not contain an explicit calculation method:
- average of the employee’s daily earnings, exclusive of overtime hours, for the 20 days the employee has worked immediately preceding the first day of the period of paid leave
- employee covered by a collective agreement that contains an explicit calculation method for personal leave:
- calculated by the method agreed on under or pursuant to the collective agreement that is binding on the employer and the employee
Benoit, an employee who works in the rail sector, is paid based on mileage. He has more than 3 months of continuous employment and is covered by a collective agreement that does not include a personal leave entitlement. Benoit recently took a personal leave day but is unsure what his personal leave pay entitlement should be. The collective agreement does not explain the calculation of pay for personal leave. This means the calculation method for Benoit’s personal leave day must be the average of his daily earnings, not including overtime hours, for the 20 days he has worked immediately before the first day of the paid leave.
Mark was advised by his daughter’s school that she was involved in an altercation. A meeting was mandatory the following day to discuss the matter with the school principal. Mark’s employer scheduled him to work the next day. However, Mark decided the matter was “urgent” enough for him to take a personal leave day to meet with the school principal. Mark’s employer believes this was not an “urgent” matter and is considering denying Mark’s personal leave for this day.
The determination as to whether something is “urgent” falls to the employee. The employer should give the benefit of the doubt to Mark and the employer should grant personal leave. Only in instances of clear and obvious abuse would it be appropriate for an employer to deny leave on this basis.
Pronto Trucking Inc. has a company policy that requires a driver to drive a minimum of 5,000 miles (8,000 kilometers) before they become eligible for personal leave every calendar year. Igor works as a driver for Pronto Trucking Inc. He meets all of the qualifying conditions outlined in the Code but has only driven 2,500 miles (4,000 kilometers) so far this calendar year. Igor recently took a personal leave day. His employer refuses to pay him for the day because he did not meet the qualifying criteria set by the company policy. The qualifying condition of driving 5,000 miles to become eligible for personal leave is not contained within the Code.
The employer cannot apply this qualifying condition. Employees working for this company are only required to meet the qualifying conditions specified in section 206.6 of the Code to be eligible for personal leave. Employers must not add qualifying conditions outside of the Code requirements.
Diego a unionized employee covered by a collective agreement, recently took a personal leave day. Diego was denied pay for this personal leave day and has filed a grievance with his union. He also filed a complaint with the Labour Program. The complaint is suspended pending the results of the grievance process under the collective agreement. Diego’s grievance has been denied at the first stage and his union chose not to send the matter further to arbitration. Even though the matter was not sent to arbitration, the complaint could be rejected because an outcome was reached through the third party resolution process provided for in the collective agreement.
Camille a unionized employee covered by a collective agreement recently took a personal leave day. Her collective agreement does not contain any provisions or similar leave comparable to personal leave. Camille was denied pay for the personal leave day by her employer and decided to file a complaint solely with the Labour Program. It would be better that Camille file a grievance through her union. However, the Labour Program in certain circumstances will investigate a complaint of this nature. In instances where a collective agreement does not contain rights and benefits equal or greater to what the Code provides for, the Labour Program will proceed with an investigation of the allegations brought forward by Camille. However, Camille must not have filed a grievance related to the same subject matter.
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