Division XV.2 – Leave of Absence for Members of the Reserve Force, offers employment protection to members of the Reserve Force who are away from their civil positions to participate in official military operations or in annual training.
The following questions and answers will be of interest to employers and employees subject to federal jurisdiction. Publication 1 of this series describes the types of businesses covered by the Code.
On this page
- Circumstances in which an employee can take reservist leave
- Requirements to qualify for reservist leave
- Notice that the employee must give to the employer
- Exempting an employee from the right to take reservist leave
- Maximum duration of leave
- Extending or shortening the leave period once the leave has started
- Extending the leave if the reservist is injured while on duty
- Unpaid leave
- Taking leave into account when calculating seniority
- Contributions to the employee’s benefits while on leave
- Employee wants to postpone annual leave during a reservist leave
- Reinstating an employee after leave
- Reinstating the employee to the position held prior to the start of the leave
- Pay reductions upon employee’s return to work
- Protection from reprisals
- Granting reservist leave when it is not included in a collective agreement
- If you encounter difficulties upon returning to your civilian position
1. Circumstances in which an employee can take reservist leave
Reservists working in federally regulated workplaces are allowed to take a leave without pay from their civilian employment to take part in annual training or in operations in Canada or abroad.
2. Requirements to qualify for reservist leave
To qualify for this leave, reservists must have been employed continuously for three months with their employer.
3. Notice that the employee must give to the employer
Reservists are also required to give their employer four weeks’ notice, unless there is a valid reason why it cannot be done; in this case the employer must be notified as soon as possible. In addition, the employee must advise the employer of the duration of the leave. The notice must be given in writing, unless there is a valid reason to provide notice through other means.
If the employer requests proof that the employee qualifies for this leave, the reservist must provide a document approved by the Chief of the Defence Staff or, if this document does not exist, a document from their Commander. This proof must be provided within three weeks after the start of the leave, unless there is a valid reason that it cannot be done.
4. Exempting an employee from the right to take reservist leave
The Minister of Labour may decide that an employee is not entitled to reservist leave if taking such leave would cause undue hardship to the employer or have an adverse effect on public health or safety.
5. Maximum duration of leave
Employees can take up to 24 months of reservist leave in a 60-month period to participate in Canadian Armed Forces military skills training and operations, except in the event of a national emergency, within the meaning of the Emergencies Act.
Up to 15 days of leave can be taken for a period of annual training.
6. Extending or shortening the leave period once the leave has started
Employees can extend or shorten the leave period once it has started. However, employees must advise the employer of any changes to the length of the originally scheduled leave. If the leave is shortened, notice must be given at least four weeks before the new date on which it would end, unless the employee has a valid reason not to do so. If the leave is extended, notice must be given at least four weeks before the date on which the leave was previously scheduled to end, unless the employee has a valid reason not to do so. Notice is required to ensure the employer can take the necessary steps to reinstate the employee and to maintain operations until the employee’s return.
7. Extending the leave if the reservist is injured while on duty
Leave can be extended if an employee needs to receive treatments or undergo a rehabilitation program to recover from a physical or mental health problem resulting from their service while on reservist leave.
8. Wages while on leave
There is no obligation for the employer to provide a paid leave of absence.
9. Taking leave into account when calculating seniority
The leave period is taken into account when calculating the employee’s seniority.
10. Contributions to the employee’s benefits while on leave
The employer is not required to make contributions to pension plans, health insurance, disability insurance or other employee benefits while the employee is on leave.
11. Employee wants to postpone annual leave during a reservist leave
The employee can postpone their annual leave until they return to work.
12. Reinstating an employee after leave
Normally, the employee must be reinstated to their position immediately after the leave of absence ends.
However, if the employee did not specify the duration of the leave before it started and the employee gives the employer less than four weeks’ notice of the end date of the leave, the employer may delay the employee’s return to work by up to four week after receiving notice. Any waiting period before returning to work is considered to be part of the leave.
13. Reinstating the employee to the position held prior to the start of the leave
The employee must be reinstated to the position that they held prior to the start of the leave. If there is a valid reason why this cannot be done, the employer can offer the employee a comparable position, in the same location, at the same salary and with the same benefits.
However, if the employee is no longer able to perform the functions of the original position, or those of a comparable position, the employer may assign the employee to a different position with different terms and conditions of employment.
14. Pay reductions upon employee’s return to work
An employee could receive lower pay upon returning to work. If, during the employee’s leave, the wages and benefits of a group of employees are reduced as part of a reorganization, the employee who is being reinstated to their position in the group will be entitled to the wages and benefits that they would be entitled to if they had been working during the reorganization. Likewise, if the wages and benefits for the employee’s group were increased during the leave, the employee would be entitled to the increases upon their return to work.
The employer must inform the employee of any change to wages and benefits resulting from a reorganization by sending the employee a notice to their last known address.
15. Protection from reprisals
An employer may not dismiss, suspend, lay off, demote or discipline an employee because the employee is a member of the Reserve Force, and has taken or intends to take reservist leave.
Also, the employer cannot take these elements into account in any decision to promote or train an employee. Lastly, employers are prohibited from refusing to hire a person because they are a member of the Reserve Force.
16. Granting reservist leave when it is not included in a collective agreement
If the employee is covered by a collective agreement that is silent on the reservist’s leave, the employer retains the obligation to grant him the leave, because the Convention must include provisions at least equal to those of the Canada Labour Code.
17. If the reservist encounters difficulties upon returning to their civilian position
It is suggested that the reservist have a conversation with their employer and include the information in this information sheet. If problems persist, contact a Labour Program District Officer, who will be able to answer any questions and give advice to both parties on the requirements of this legislation.
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