Stacking - IPG-99
Effective date: September 1, 2019
Revised date: February 28, 2022
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- 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
This IPG intends to define the scope of the new 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.
Note: Student interns are also subject to the interpretation of this IPG.
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 this new personal leave?
- how will this new leave apply to an employee who is covered by a collective agreement or employment contract that already provides a similar type of leave?
All federally regulated employees and student interns are entitled to a new 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:
- treating their illness or injury
- 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
This leave is not pro-rated for the year 2019. As a result, employees who qualify are entitled to the five days of personal leave for the period from September 1, 2019 to December 31, 2019.
However, 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
An employee may, under the terms of the applicable collective agreement or employment contract, have already taken 5 days of leave, including at least 3 with pay, for one or more of the reasons covered by the new personal leave (for example, caring for a sick child). In this case, this employee is not entitled to additional personal leave under the Code for the same calendar year. Similarly, they can subtract these days from their personal leave entitlement under the Code for that calendar year if the employee has taken fewer than 5 days of leave with pay under the terms of:
- the collective agreement; or
- employment contract
This also applies to any leave taken in the period from January 1 to August 31, 2019, before the coming into force of the Code’s new personal leave.
An employee can take personal leave under the Code to address other matters (for example, specified family obligations). Their collective agreement or contract of employment must provide for leave with pay that they can take for one, but not all, of the reasons covered by the Code’s personal leave (for example, sick leave with pay). They must also have used fewer than 5 days of that leave in the calendar year. In that case, the employee would be entitled to personal leave equal to 5 days less any days of leave taken.
An inspector who is responsible for investigating a complaint, which the employer has not provided one 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
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 health leave” with pay each calendar year. She can use this solely in case of personal sickness or injury. She would like to take as much personal leave under the Code as possible, starting on October 7, 2019. She would like to take it to care for 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 health 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 health leave, then she would be entitled to 1 day of personal leave with pay, and 2 days without pay. Depending on the terms of her collective agreement, she might also be entitled to additional employee health leave (see example below)
- If Marlene has taken no employee health 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. Her leave was related to the care of a family member and not to her personal health. As a result, she might also be entitled to the 6 days of employee health leave under her collective agreement for the remainder of the calendar year. The availability of the 6-day employee health leave will depend on the terms of her collective agreement (note that this is a contractual issue that does not fall within the scope of Part III of the Code)
Jean-Paul has been employed for more than 6 months. His employer has an internal policy, referred to in Jean-Paul’s employment contract. It provides for 5 days of “paid discretionary leave” that an employee can take for any reason and at any time. They do not need to provide prior notice or written justification. This calendar year, Jean-Paul has already used 2 days of paid discretionary leave to deal with family responsibilities. One day to address a personal emergency and 2 days to extend his annual vacation, for a total of 5 days of leave. He would now like to take additional personal leave pursuant to the Code. However, his contract of employment already provided him with leave that could be taken for any of the reasons covered by the Code’s personal leave, under conditions that are at least as beneficial. Therefore, Jean-Paul is not entitled to any personal leave this calendar year.
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.
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