Privacy, compassionate care leave hot topics (HR Rulebook)

British Columbia and Nova Scotia legislators have been particularly busy

Privacy and compassionate care leave have been common threads for Canadian governments this fall. British Columbia and Nova Scotia legislators have been especially busy.

Here’s a roundup of some of the more interesting developments.

Federal

•Privacy: The Personal Information Protection and Electronic Documents Act, known as PIPEDA, isn’t new, but with Jan. 1, 2004 approaching, it’s on people’s minds.

PIPEDA mandates that organizations ensure an individual’s personal information is protected. An organization must obtain consent wherever information of a personal or “identifiable” nature is collected, used or disclosed. Organizations must establish internal protocols, including appointment of a privacy officer, to ensure compliance with the legislation. PIPEDA has applied to federally-regulated companies since Jan. 1, 2001. As of Jan. 1, 2004, it will apply in any province that hasn’t passed its own substantially similar law. (For more on PIPEDA and provincial privacy legislation see “Canada’s new privacy law — what it means to you,” page 20.)

•Compassionate care leave: Employment Insurance (EI) benefits for up to six weeks of compassionate care leave will be available starting Jan. 1, 2004 by virtue of The Budget Implementation Act, 2003 (Bill C-28). The EI benefits will make it easier for employees to provide care or support for a gravely ill or dying family member.

Draft regulations for the new benefits, as they stand at the time of writing, spell out the following details:

•benefits will be available to EI claimants who are providing care or support due to the serious medical condition of a spouse or common-law partner, parent, spouse or common-law partner of a parent, child or child of the spouse or common-law partner;

•the ill family member must have a significant risk of death within 26 weeks for the caregiver to claim the benefits;

•the benefits can be shared among eligible family members. For instance, the two parents of a seriously ill child could each claim three weeks of benefits, or one parent could claim all six weeks of benefits; and

•access to this new EI special benefit will be based on the rules for existing EI special benefits, such as sickness, maternity leave and parental leave. A claimant will require 600 hours of insurable employment to qualify for up to six weeks of compassionate care benefits. A doctor’s note will be required to show that the family member is ill and at risk of death within the following 26 weeks.

The Canada Labour Code was also amended to guarantee job protection during a compassionate care leave of up to eight weeks (two qualifying weeks plus six weeks of benefits). So far, both Nova Scotia and the Yukon have introduced co-ordinating legislation, as discussed below.

British Columbia

•Privacy: Bill 38, the Personal Information Protection Act, received royal assent Oct. 23. The act comes into force on Jan. 1, 2004. It governs the collection, use and disclosure of personal information by private sector organizations, including employee personal information.

The British Columbia law takes a somewhat different approach than the one by the federal PIPEDA. The B.C. legislation presumes employee consent when an employer collects, uses or discloses information about its employees for a purpose that is reasonably required to establish, manage, or terminate an employee relationship. While consent is not required in those situations, the employer still must give the employee notice about the purpose of the information collection and use.

It remains to be seen whether the B.C. law will be accepted by the federal government as “substantially similar” to the federal law.

•Workers’ compensation, employment standards: Bill 37, the Skills Development and Labour Statutes Amendment Act, 2003 received third reading Oct. 8. Changes include improved workers’ compensation lifetime survivor benefits for surviving partners of workers who die from workplace injuries. Compensation levels will reflect the difficulty older workers may have in entering the workforce after the unexpected death of a partner. This change is retroactive to June 30, 2003 when B.C.’s workers’ compensation system was updated.

Amendments to the Employment Standards Act include prohibiting employers from using earnings from one pay period to top up another pay period where the employee does not earn minimum wage, and eliminating the six-month time limit for banking of overtime wages. Employers are currently required to pay out overtime wages, credit them to an overtime bank, or grant time off with pay within six months of overtime being incurred by an employee.

Bill 37 will come into force by regulation.

Nova Scotia

•Privacy: Although new privacy legislation has not been introduced yet, an advisory committee has released a report containing 47 recommendations for improving the province’s Freedom of Information and Protection of Privacy Act. A government response is expected within weeks.

•Compassionate care leave: Nova Scotia’s Bill 7 amends the Labour Standards Code to establish compassionate care leave of up to eight weeks, in harmony with the new Employment Insurance compassionate care leave provisions. It received royal assent on Oct. 30.

•Mandatory retirement: Nova Scotia Bill 6, the Public Service Superannuation Amendment Act, received royal assent Oct. 30. The bill abolishes mandatory retirement at age 65 for members of Nova Scotia’s public service.

•Labour standards: A number of changes to Nova Scotia’s Labour Standards Act came into force, through Bill 6, on Oct. 30, including:

•employees working in stores not currently open on Sunday have the right to refuse Sunday work;

•two weeks’ vacation per year increases to three weeks’ vacation after eight years of work with the same employer;

•three unpaid sick leave days per year are allowed to attend to a sick family member or medical appointments;

•overtime pay is increased to one-and-a-half times the employee’s regular wage, after 48 hours of work in a week;

•penalties for breaching the act have increased — up to $25,000 for corporations, $5,000 for non-corporations, and $2,500 for employees, per day of violation; and

•specific powers of reinstatement have been given to the director of labour standards.

The changes come along with Nova Scotia’s move to allow Sunday shopping. But opposition Liberals are already calling for a re-examination of the some of the changes due to employer concerns about overtime.

Saskatchewan

•Privacy, health information: Saskatchewan’s Health Information Protection Act, was proclaimed Sept. 1. It sets new rules for the collection, use, disclosure and management of personal health information in the province.

The act applies to “trustees” or individuals and organizations that have personal health information under their custody and control. Trustees include regional health authorities, members of regulated health professions and government departments and agencies. They have a legal duty to protect the integrity, accuracy and confidentiality of personal health information.

A third-party commissioner can review disputes about personal health information, and there are significant penalties for violations of the act.

Yukon

•Compassionate care leave: Bill 38, An Act to Amend the Employment Standards Act, adopts EI-co-ordinated compassionate care leave in the Yukon. It grants eight weeks of job-protected leave to provide care or support to an immediate family member of the employee. The bill received royal assent Nov. 17, and comes into force Jan. 1.

•Privacy: Yukon’s Bill 40, An Act to Amend the Access to Information and Protection of Privacy Act, also received royal assent Nov. 17. The bill allows public bodies to refuse to disclose a workplace harassment record and any information in it, in some circumstances.

Refusal is justified where disclosure could deter an employee from making a complaint under a policy or provision, affect the resolution of a complaint, be harmful to employee relations, unfairly damage the reputation of a person involved or infringe on a person’s legal rights.

Sari Sanders is a lawyer and the head of Hewitt Canada’s Research group. She may be contacted at (416) 225-5001, [email protected]. HR Rulebook appears quarterly in Canadian HR Reporter.

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