Reasonably practicable - Leaves - IPG-098

1. Subject

This IPG is intended to define the expression "reasonably practicable"in sections 206.6, 206.7 and 206.8 within the meaning of Division 7 of Part III of the Canada Labour Code (Code).

2. Issue

The following provisions have been added to Part III of the Canada Labour Code:

• personal leave – 206.6
• leave for Victims of Family Violence – 206.7
• leave for Traditional Aboriginal Practices– 206.8

These changes will take effect on September 1, 2019.

There is a need to ensure a consistent interpretation and application of the expression "reasonably practicable" at the national level. To this end, the following two questions will be addressed:

• what does the expression "reasonably practicable" mean?
• how does this expression apply to different types of employees?

3. Interpretation

"Reasonably practicable" refers to what can be accomplished or done in consideration of the investment required, for example in time, cost and effort on the part of the employee to carry out their obligation to their employer.

This expression is generally used in law to qualify an employee's obligation in a given situation. This implies that factors other than the ability to produce can be considered when determining what is not only possible, but also what is appropriate or rational, considering the context surrounding the absence. For example, it would not be reasonably practicable for an employee who was absent for domestic violence to provide a copy of the police report if the police's practice is to no longer provide such a copy to victims, unless they first initiate costly and complex legal procedures to obtain it.

To determine what is reasonably practicable, the inspector must proceed on a case-by-case basis. What is reasonably practicable in one case may be entirely different when it comes to meeting an obligation in another case.

The criteria that can be taken into consideration include, but are not limited to

• feasibility
• the reasonableness of the effort required
• time
• additional costs to the employee
• the practice

In certain situations, where it is not reasonably practical for an employee to provide the documentation required by the employer, they may then provide a written and signed statement in their own hand to attest to the circumstances that led to the employee's absence.

4. Examples

• Last week, Marie took time off work because of her retired mother's health. She took five days of personal leave to take care of her mother, who was on bed rest following knee surgery. When she returned to work the following week, her employer asked her to provide supporting documents regarding the reasons for her leave:
  • the employee should be able to obtain a certificate from the surgeon stating that her mother could not travel for a specified period of time following her operation
  • if the employee's mother has a reluctance to provide personal information to a third party (the employer in this case), it will be difficult for the employee to provide the documentation required by her employer. In this situation, the employee could waive her obligation by providing the employer with a written and signed statement attesting to the facts related to her absence
  • Eric works as a cable technician for the residential sector. Last Sunday, he injured his lower back while helping a friend move. The following Monday, he went to see a doctor. The doctor prescribed anti-inflammatories and recommended that he take a few days of rest because of the physical demands of his work. Eric asked for a certificate to justify his absence from work, and the doctor agreed to give him one for an administrative fee of $40. If Eric has a good salary, the costs of the certificate should not be an undue financial hardship and he should be able to meet his employer's request. However, if Eric were a part-time worker, paid a minimum wage, he might have difficulty paying the amount as it presents a financial hardship. In this case, it would not be reasonably practicable for him to provide the certificate to the employer.