Stacking – 802-1-IPG-099

Effective date: September 1, 2019

Comment: Pursuant to the Interpretation Act, in the following text, words importing male persons include female persons.

Guideline

1. Subject

This IPG is intended 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 days of leave (with or without pay) for one or more of the reasons listed in subsection 206.6(1) of the Code.

2. Issue

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

  • personal leave – 206.6

This change takes effect on September 1, 2019.

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

  • which employees are entitled to this new personal leave?
  • must the amount of leave be pro-rated for the year 2019, given that it only comes into force on September 1, 2019?
  • 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?

3. Interpretation

Effective September 1, 2019, all federally regulated employees are entitled to a new personal leave of up to five days each calendar year. For those who have completed three consecutive months of continuous employment with their employer, the first three days are to be provided with pay.  An employee may take this leave for:

  • 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 five or more days of personal leave (including at least three days with pay) are not entitled to additional personal leave under the Code, if:

  • the leave in the collective agreement or contract of employment can be taken for any of the reasons listed above
  • it can be divided by the employee in at least five periods of one day each (or shorter periods meeting the employee’s needs)
  • the 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 to be reinstated in the same or a comparable position after the end of the leave are at least as beneficial for the employee as those under the Code

If the employee, under the terms of the applicable collective agreement or employment contract, has already taken five days of leave, including at least three with pay, for one or more of the reasons covered by the new personal leave (e.g. caring for a sick child), the employee is not entitled to additional personal leave under the Code for the same calendar year.  Similarly, if the employee has taken fewer than five days of leave with pay under the terms of the collective agreement or employment contract, these days can be subtracted from the personal leave entitlement under the Code for that calendar year. 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 whose collective agreement or contract of employment provides for leave with pay that can be taken for one, but not all, of the reasons covered by the Code’s personal leave (e.g. sick leave with pay), and who has used fewer than five days of that leave in the calendar year, can take personal leave under the Code to address other matters (e.g. specified family obligations). In that case, the employee would be entitled to personal leave equal to five days less any days of leave taken.

An inspector who is responsible for investigating a complaint that 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

  • Marlene, an employee with more than three months of continuous employment, is covered by a collective agreement that provides her with six days of “employee health leave” with pay each calendar year, which can be used 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, 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 five 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 two days of employee health leave, then she will be entitled to one day of personal leave with pay, and two 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 is entitled to five days of personal leave under the Code, the first three of which must be paid. Given that her leave was related to the care of a family member and not to her personal health, she might also be entitled to the six days of employee health leave under her collective agreement for the remainder of the calendar year. The availability of the six-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 six months. His employer has an internal policy, referred to in Jean-Paul’s employment contract, which provides for five days of “paid discretionary leave” that an employee can take for any reason and at any time, without the need to provide prior notice or written justification. This calendar year, Jean-Paul has already used two days of paid discretionary leave to deal with family responsibilities, one day to address a personal emergency and two days to extend his annual vacation, for a total of five days of leave. He would now like to take additional personal leave pursuant to the Code. However, given that 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, 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 five days of personal leave to deal with these issues, but the leave is without pay as he has not yet completed three consecutive months of continuous employment.
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