Stacking - Medical Leave with Pay - IPG-119

Effective date: December 1, 2022

On this page

Object

The intent of this interpretation, policy and guideline (IPG) is to define the scope of the medical leave with pay provided for in section 239 of Part III of the Canada Labour Code (Code), where a collective agreement or contract of employment grants an employee days of leave (with pay) for one or more of the reasons listed in subsection 239(1) and (1.1) of the Code.

There is a need to clarify how existing benefits offered by an employer will interact with the medical leave with pay entitlement established in the Code.

Issue

There is a need to ensure a consistent interpretation of the scope of section 239 at the national level. To this end, this IPG will address the following questions:

  • how will this leave apply to an employee who is covered by a collective agreement or employment contract that already provides a similar type of leave?
  • what is the interaction between an existing leave policy and the medical leave with pay?
  • what factors need to be considered when determining whether an existing benefit meets the requirements of the medical leave with pay under the Code?

Interpretation

As of December 1, 2022, all employees in federally regulated workplaces who complete an initial 30-day qualifying period of continuous employment with their employer are entitled to 3 days of medical leave with pay. Employees are then entitled to an additional day of medical leave with pay at the beginning of each month after completing 1 month of continuous employment with the employer up to a maximum of 10 days per year. An employee may take this leave for the following reasons:

  • personal illness or injury of the employee
  • organ or tissue donation from the employee
  • medical appointments for the employee during working hours
  • quarantine of the employee

This leave is not pro-rated for the year 2022. As a result, employees already employed on the coming into force date of December 1, 2022 will be entitled to 3 days of medical leave with pay after completing an initial 30-day qualifying period of continuous employment with their employer.

Leave taken prior to December 1, 2022, before the coming into force of the Code's medical leave with pay provisions, cannot count towards the employee's medical leave with pay entitlement under the Code as the Code benefit is based on future accrual.

Interaction with existing benefits offered by an employer

For the purposes of this IPG:

  • “Sick leave” – reference to an existing employer policy/collective agreement entitlement
  • “Medical leave with pay” – reference to Code entitlement

If an employee is already entitled to paid sick leave (or an equivalent benefit) under a collective agreement or employment contract, taking a day of such leave may also count as a day of medical leave with pay under the Code if both leaves are similar in scope and the conditions described below are met.

As specified in subsection 168(1.1) , certain provisions of the Code do not apply to an employer and employees whose collective agreement provides rights and benefits that are at least as favourable. This is not the case for medical leave with pay. Subsection 168(1.1) only applies to Divisions II, IV, V and VIII of the Code.

Medical leave with pay under the Code applies to all employees, including those covered by a collective agreement. However, as specified in subsection 168(1) of the Code, the medical leave with pay provisions do not affect any rights or benefits under a contract or arrangement that are more favourable to an employee.

An existing paid sick leave entitlement that is greater and more favourable than what an employee would be entitled to under the Code would not result in a stacking of benefits. This would be the case, for example, if an employer chooses to offer employees 10 days of paid sick leave at the start of each year rather than require them to accrue days of leave over a longer period, as provided for under the Code.

Scope of the benefit

As previously mentioned, the Code's medical leave with pay provision is intended to give employees access to paid leave for any of the following medical reasons:

  • personal illness or injury of the employee
  • organ or tissue donation from the employee
  • medical appointments for the employee during working hours
  • quarantine of the employee

In order for a day of paid sick leave taken under an employment contract or collective agreement to also count as a day of medical leave with pay under the Code, both must be of the same or similar scope.

If an existing benefit is different in scope and not directly related to leave for medical reasons (for example, floater holidays; all-purpose leave that could be used to extend a vacation), then that benefit is considered separate and would not reduce the employee's medical leave with pay entitlement. The employee should have the right to access both separately when an existing entitlement differs in scope.

Meeting the Code's requirements

Periods of paid sick leave taken under the terms of a collective agreement or employment contract will count towards an employee's entitlement to medical leave with pay under the Code if all of the following criteria are satisfied:

  • the employee can take the leave provided for under the collective agreement or contract of employment for one or more of the reasons listed above
  • the employee may take the leave in one or more periods. The employer may require that each period of leave be of not less than one day's duration
  • the employer does not require that the employee provide a medical certificate if they are absent for fewer than 5 consecutive days
  • the employee is entitled to:
    • receive their regular rate of wages for each day of the leave
    • maintain and accumulate pension, health and disability benefits, as well as seniority, during the leave, and
    • be reinstated after the end of the leave

Examples

Coming into force and accrual of medical leave with pay

Example 1

Nia is subject to a collective agreement. The collective agreement provides her with 10 days of paid sick leave per calendar year, and the scope and conditions of that entitlement are the same as the medical leave with pay provided by the Code.

Nia takes 5 paid sick leave days provided under her collective agreement in January 2022, and 5 more in November 2022. By the end of November 2022, Nia has used up all of her paid sick leave for the 2022 calendar year under the terms of the collective agreement.

On December 1, 2022, the medical leave with pay provisions of the Code come into force and, after the initial 30-day qualifying period, Nia earns her first 3 days of medical leave with pay on December 31, 2022. As a result, Nia is able to take 1 of the 3 days of medical leave with pay on December 31, 2022.

As noted above, under the provisions of the Code, the accrual of medical leave with pay begins on the date those provisions come into force with no regard to paid sick leave taken by an employee prior to their coming into force.

Leave entitlement complies with the Code - no stacking of benefits

Example 2

Matt is subject to a collective agreement. The paid sick leave entitlement under the collective agreement is much more favourable than that provided by the medical leave with pay provisions under the Code.

Under his collective agreement, Matt receives 20 days of paid sick leave per calendar year, available to him as of January 1 each year. The sick leave is paid at the same rate of pay as his regular wages. Matt can take the paid sick leave for all of the reasons provided in the Code (for example, personal illness or injury, organ or tissue donation, medical appointments, and quarantine). All unused days are carried forward to the next calendar year, and never expire.

The medical leave with pay provisions of the Code come into effect on December 1, 2022, and Matt begins to accrue medical leave with pay under the Code. Throughout 2023, Matt does not take any sick leave at all. At the start of 2024, Matt has accrued and banked 10 days of medical leave with pay under the Code. Alongside this, Matt's bank of paid sick leave under his collective agreement sits at 60 days.

In February 2024, Matt takes 10 days of leave due to personal illness. This reduces his paid sick leave bank under his collective agreement by 10 days, to 50. It also reduces Matt's entitlement to medical leave with pay under the Code by 10 days, to 0. In practice, due to the fact that the sick leave benefits provided under Matt's collective agreement are directly related to (and are in fact much more favourable than) the medical leave with pay provided under the Code, these benefits do not stack.

Example 3

Ana is subject to a collective agreement that provides her with 10 days of paid sick leave per year. The sick leave provisions in her collective agreement are identical to the medical leave with pay provisions of the Code with one exception – the leave under the terms of the collective agreement can only be used for personal illness or injury. The medical leave with pay provided under the Code can be used for any of the following reasons: personal illness or injury, organ or tissue donation, medical appointments and quarantine.

Ana falls ill and uses all 10 paid sick leave days provided under her collective agreement, reducing her bank to 0. Later that year, Ana decides to donate a kidney to a friend in need. Ana wants to use additional medical leave with pay for the surgery and the post-surgery recovery.

Ana's collective agreement does not allow the use of paid sick leave for organ donation; the existing entitlement contained in her collective agreement is therefore less favourable than the medical leave with pay provided by the Code. However, since Ana did receive and use 10 days of paid sick leave for one of the reasons listed in the Code, she is not entitled to additional medical leave with pay for the purposes of the organ donation.

Example 4

Angèle is subject to a collective agreement. The collective agreement provides her with 10 days of paid sick leave, which is fully earned and available to her on the first day of every calendar year. The other terms and conditions related to the paid sick leave provided under the collective agreement are identical to what is provided under the Code, with one exception: none of the unused days can be carried forward from one year to the next.

Although unused days of paid sick leave cannot be carried forward from one year to the next, Angèle will start every calendar year with 10 days of paid sick leave available to her. This is a greater benefit than the entitlement to medical leave with pay under the Code. As a result, Angèle will not have access to additional days of medical leave with pay.

Leave entitlement does not comply with the Code - scope and purpose is similar

Example 5

Ty is subject to a collective agreement that provides him with 10 days of paid sick leave per year. The sick leave provisions in his collective agreement are identical to the provisions of the Code with one exception – the leave under the collective agreement is paid at only 75% of an employee's regular rate of wages. The rate of pay in the collective agreement (75%) is not as favourable as the minimum rate of pay under the Code (100%).

In order to comply with the medical leave with pay provisions, Ty's employer must top up the employees' rate of pay, that is, paying the additional 25% of wages over and above what the collective agreement requires, every time an employee takes paid sick leave.

Example 6

Amalia's employment contract provides 2 paid sick leave days per year. The paid sick leave provisions in the contract are identical to the medical leave with pay provisions of the Code with the exception that only 2 paid sick leave days are provided per year, rather than 10.

In addition to the 2 paid sick leave days provided by her employer, Amalia wonders if she will be entitled to the 10 days of medical leave with pay under the Code.

Amalia will be entitled to take 2 days of paid sick leave as outlined in her employment contract, and after that, she will be entitled to up to 8 more days of medical leave with pay for the remainder of the year, based on the accrual rate provided for under the Code.

Example 7

Victor's collective agreement provides 10 days of sick leave per year, which he can bank from year to year. Any unused days are carried forward to the next calendar year, and never expire. The paid sick leave entitlement under the collective agreement is similar to the medical leave with pay provisions under the Code, except that the collective agreement provides that he can only use 5 days of paid sick leave at 70% of his salary per year, and the remaining 5 days are unpaid.

Alongside his collective agreement entitlement to medical leave, Victor accrues 10 days of medical leave with pay as provided under the Code.

To comply with the provisions on medical leave with pay in the Code, Victor's employer must top-up the missing salary for the first 5 days of paid sick leave so that Victor is paid 100% of his salary. The employer must also pay Victor 100% of his salary for the next 5 days of sick leave Victor takes that year in order to ensure he receives the equivalent of 10 days of medical leave with full pay, as provided under the Code.

Leave entitlement does not comply with the Code - scope and purpose is different

Example 8

Robin's employment contract provides them with no paid medical leave, but it does provide three floater days at the beginning of each year, to be used regardless of the reason for the leave. The contract makes it clear that these floater days are meant as additional paid holidays (in addition to the 10 general holidays provided under the Code).

Robin has accrued and banked 10 days of medical leave with pay under the provisions of the Code.

The scope of the 2 types of leave is different: the floater holiday leave provided under the contract is meant to provide employees with additional days to rest or pursue other interests, while the medical leave with pay provided under the Code is meant to provide employees with paid days off for situations related to medical matters.

Robin catches a cold and stays home from work for 3 days in a row. Robin informs their employer that they would like to use their 3 floater days to cover this period.

Later in the year, Robin again falls ill, this time missing 10 days of work. Their employer informs Robin that only the first 7 days of this period will be paid, and the last 3 days will be treated as unpaid leave since they already used three floater days for purposes related to medical matters. This is not in compliance with the Code.

Since the scope of the 2 leave entitlements is different, Robin is entitled to both 10 days of medical leave with pay under the Code and the 3 floater days provided under their contract of employment. The fact that Robin chose to use the 3 floater days for a reason related to illness does not mean that they will be entitled to less paid leave overall.

Example 9

Sharmaine's employment contract provides her with no paid medical leave. However, her contract does provide her with 3 floater days at the beginning of each year, to be used at her discretion. The contract makes it clear that these floater days are meant as additional paid holidays (in addition to the 10 general holidays provided under the Code).

Sharmaine has accrued and banked 10 days of medical leave with pay under the provisions of the Code.

The scope of the 2 types of leave is different: the floater holiday leave provided under the contract is meant to provide employees with additional days to rest or pursue other interests, while the medical leave with pay provided under the Code is meant to provide employees with paid days off for situations related to medical matters.

Sharmaine sprains her finger and is absent from work for a day. She informs her employer that she is taking a paid leave day due to the injury. She returns to work the next day and her employer informs her that her bank of paid floater days is reduced from 3 to 2.

Sharmaine's employer cannot force Sharmaine to use her floater days as medical leave with pay as the decision to use her banked medical leave with pay belongs to her as the employee. Sharmaine is entitled to both 10 days of medical leave with pay under the Code and to the 3 floater days under her contract of employment.

Report a problem or mistake on this page
Please select all that apply:

Thank you for your help!

You will not receive a reply. For enquiries, contact us.

Date modified: