Stacking – Personal leave - IPG-099

Effective date: September 1, 2019

Revised date: December 1, 2022

On this page

• Object
• Issue
• Interpretation
• Examples of how personal leave applies when an employee is or is not covered by a collective agreement or employment contract that provides a similar type of leave

Object

This IPG intends to define the scope of the personal leave provided for in section 206.6, within the meaning of Division 7 of Part III of the Canada Labour Code (Code), where a collective agreement or contract of employment grants an employee (includes persons often referred to as “interns”) days of leave (with or without pay) for 1 or more of the reasons listed in subsection 206.6(1) of the Code.

Issue

The following provision has been added to Part III of the Code :

• personal leave – 206.6

There is a need to ensure a consistent interpretation of the scope of subsection 206.6(1) at the national level. To this end, this IPG will address the following questions:

• which employees are entitled to personal leave?
• how will the leave apply to an employee who is covered by a collective agreement or employment contract that already provides a similar type of leave?

Interpretation

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 are to be granted with pay. An employee may take this leave for the following reasons:

• 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

Employees whose collective agreement or employment contract provides for 5 or more days of personal leave (including at least 3 days with pay) 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 above
• the employee can divide it in at least 5 periods of 1 day each (or shorter periods meeting the employee’s needs)
• the following conditions for taking the leave are at least as beneficial for the employee as those under the Code:
  • the amount of pay for the leave
  • the accrual and maintenance of insurance, pension and other benefits during the leave, and
  • the right to be reinstated in the same or a comparable position after the end of the leave

If an existing leave benefit under a collective agreement or employment contract is different in scope and not directly related to personal leave (for example, paid sick leave, or all-purpose floater holiday leave that could be used to extend a vacation), then that benefit is considered separate and would not reduce the employee’s personal leave entitlement. The employee should have the right to access both separately when an existing entitlement differs in scope.

An employee may, under the terms of the applicable collective agreement or employment contract, take 5 days of leave, including at least 3 with pay, for 1 or more of the reasons covered by personal leave (for example, caring for a sick child). If the scope of the leave is similar to the Code entitlement, this employee is not entitled to additional personal leave under the Code for the same calendar year.

Similarly, if an employee has taken fewer than 5 days of leave under the terms of their collective agreement or employment contract, the employer can subtract these days from the employee’s personal leave entitlement under the Code.

An employee can take personal leave under the Code for other reasons (for example, specified family obligations). If their collective agreement or contract of employment provides for personal leave with pay that they can take for 1, but not all, of the reasons covered by the Code’s personal leave (for example, only for addressing an urgent matter concerning themselves), then in that case, the employee would be entitled to personal leave equal to 5 days less any days of leave already taken.

A Labour Affairs Officer investigating a complaint that an employer has not provided 1 or more days of personal leave to an employee, or has provided them without pay, should attempt to obtain a copy of the applicable collective agreement or contract of employment to determine the terms for granting leave.

Examples of how personal leave applies when an employee is or is not covered by a collective agreement or employment contract that provides a similar type of leave

Example 1

Marlene is an employee with more than 3 months of continuous employment. She is covered by a collective agreement that provides her with 6 days of “employee family care leave” with pay each calendar year. She can use this solely in case of family illness or emergency. She would like to take as much personal leave under the Code as possible, starting on October 7, 2019, to take care of her young daughter who has broken an ankle.

• If, in the period from January 1, 2019 to October 6, 2019, Marlene has already taken 5 days of employee family care leave, then she will not be entitled to any personal leave under the Code
• If, in the period from January 1, 2019 to October 6, 2019, Marlene has taken 2 days of employee family care leave, then she would be entitled to 1 day of personal leave with pay, and 2 days without pay
• If Marlene has taken no family care leave during the calendar year, then she would be entitled to 5 days of personal leave under the Code, the first 3 of which must be paid

Example 2

Joseph was hired on August 15, 2019 for a 10-week, part-time contract. His employment contract contains no leave of absence provisions. He needs to take personal leave due to a number of health emergencies concerning family members in September and October 2019. Joseph is entitled to take up to 5 days of personal leave to deal with these issues. However, the leave is without pay, as he has not yet completed 3 consecutive months of continuous employment.

Example 3

Lorraine has been employed for more than 3 months. She is subject to a collective agreement that provides her with 5 days of personal leave per year. The personal leave provisions in her collective agreement are identical to the personal leave provisions of the Code with one exception – the leave under the terms of the collective agreement can only be used for carrying out responsibilities related to the health, education, or care of the employee’s family members. The personal leave provided under the Code can be used for these same reasons, but can also be used for addressing any urgent matter concerning the employee or their family members, or for the employee to attend their citizenship ceremony.

Lorraine’s wife falls ill and she decides to make use of her entire personal leave entitlement under her collective agreement to care for her wife. She takes 5 days of leave and the first 3 days are paid. Doing so, Lorraine reduces her bank of personal leave to zero.

Later that year, Lorraine receives a letter regarding her Canadian citizenship application, inviting her to attend her citizenship ceremony. She would like to use 1 additional day of personal leave in order to attend her citizenship ceremony.

Lorraine’s collective agreement does not allow the use of personal leave for attending a citizenship ceremony; the existing entitlement contained in her collective agreement is less favourable than the personal leave provided by the Code. However, since Lorraine did receive and use 5 days of personal leave – with 3 paid – for reasons covered by the provisions of the Code under an existing entitlement of similar scope, she is not entitled to an additional day of personal leave for the purposes of attending her citizenship ceremony.