Alberta employers face new leaves

Shorter eligibility period, cumulative effect could be challenging: Experts
By Sarah Dobson
|Canadian HR Reporter|Last Updated: 01/10/2018
Calgary
Alberta employers would be short-sighted to think there won’t be much of an impact from the province’s new unpaid leaves, or revisions to existing ones, says one employment lawyer. Credit: Todd Roll (Reuters)

With the arrival of the new year, Alberta employers have plenty on their plates, what with changes to the province’s regulations around health and safety, workers’ compensation, labour relations and employment standards.

When it comes to the new standards, there are several new unpaid leaves and provisions that will definitely have an impact. So if employers are not yet prepared, they should get started, say experts.

The number of leaves is substantial, as Alberta catches up to many of the other provinces, said Birch Miller, a partner at Blakes in Calgary.

“Many employers know these changes are coming but haven’t really delved into what they are,” she said. “These are employee-friendly changes, on the whole, and employers are going to struggle, at first, in understanding them because there’s so many and it’s not necessarily easy to understand them; and then from there, making sure they comply.”

At first blush, employers may think, “Oh, this doesn’t look that bad” because it’s good for workers to have access to support, recognizing they are people outside of work and things come up and you need to be able to address them, said Loretta Bouwmeester, a partner at Mathews, Dinsdale & Clark in Calgary.

“The challenge is if you have a worker who has a lot of stresses outside of the workplace and a lot of responsibilities, these leaves are cumulative and they’re also annual.”

It would be short-sighted for employers to think there’s not much impact, she said.

“I think that this will be a basis for unions to negotiate increased benefits, so even though these are unpaid, it’s a good platform to argue, ‘Well, it’s a statutory requirement, let’s see some coverage for these types of leaves.’”

Most of the leaves make a lot of sense — they were already given on discretionary basis — but there’s some fear about misuse, said Justin Turc, an associate at McCarthy Tétrault in Calgary.

“A lot of these changes are in some ways not all that substantive a change from an employer’s practice, but for some it is, especially for those employers who aren’t in a position to provide generous compensation packages and benefit packages, with lower-level employees... that’s what the government was getting at was that a lot of these people who weren’t provided with these benefits are the types of employees employment standards are designed to protect, so your lower- to middle-range employee.”

But the changes are quite resource-intensive, and the biggest financial effect on employers is those that don’t have a large staff, said Turc.

“You need to pay other employees overtime or higher wages or find a replacement worker or train or do those types of activities where you’re incurring financial cost.”

Of course, an employer can always go above and beyond the standard, as long as it does so in a non-discriminatory fashion, he said.

“I bet you a lot will, especially with the shorter leaves.”

Leaves for family responsibility, long-term illness

One of the big changes will see employees eligible for all the leaves after 90 days, instead of having to wait one year — a change in line with other provinces. When it comes to maternity or paternity leave, it’s a significant difference, said Turc.

“I can see those being the biggest struggle for employers to deal with, when they’re hiring a new employee who’s been there for three or four months and now they’re going on a parental leave, a mat leave, for instance — especially for small business, that could be difficult to deal with, or disruptive.”

Also of note is the new Personal and Family Responsibility Leave. If an employer already provides paid sick days, it needs to consider if it will continue to do so, said Bouwmeester. A small firm, for example, that already offers six sick days might make it inclusive of this new leave, so it’s not offering 11 days per year.

“You’ve got to take a step back and think about what your workplace needs are, what you’re able to manage effectively; and if you’re a small employer, it’s very different than if you’re a large one, where there’s cross-trained employees and (people) to backfill,” she said.

This also represents a “consequential change” to the human rights framework because an employer can’t contract out of the minimum employment standard codes requirements, said Bouwmeester.

“All of a sudden, you can’t say you’ve got an attendance problem if somebody misses five days per year, because the legislation says they’re entitled to it. So your floor on a duty-to-accommodate analysis starts at the legislation, and I don’t think people are cluing into that yet, to be honest.”

There’s also the potential for misuse by employees, said Turc.

“The reasons for taking (the leave) are fairly liberal, so it can be a concern. So now you’re not going to be able to discipline people for not showing up and they’ll quite fairly easily be able to identify some reason in this personal and family responsibility leave that may or not be valid.”

For illness-related leaves, medical documentation is often required, but it’s less defined for the personal and family responsibility one — though an employer can establish its own policies and procedures, said Miller.

Employers may also want to take note of the Long-Term Illness and Injury Leave, which is going to come into play when short- and long-term disability insurers are denying coverage, but a doctor’s note says the employee is not fit for duty, said Bouwmeester.

“Ultimately, I think we’re going to see a high rate of usage of that one.”

Plus, a person can take the leave even if he’s only been with an employer for 90 days, she said.

“They get up to 16 weeks, so you’re never going to be able to argue, in my mind, that you can’t accommodate a long-term illness leave until it hits four months; even if you’re a small employer with three employees, you’re going to have to accommodate that worker, you’re not going to be able to terminate saying, ‘We can’t accommodate’ and then hire full-time for the new role.”

Tips for employers

These changes require every employer, big or small, to look at each policy or procedure, said Miller, “because now it may not align, or maybe they’re promising something that they aren’t required to promise and they want to look at that, or what they thought was generous... is now not meeting the requirements.”

Many employers are considering changes to health and benefit plans, pension plans, and other ancillary plans, said Turc.

“A lot of people are looking at whether they’d continue benefits during some of these leaves. So they might already have an approach that they take with respect to maternity and paternity leave, because those are old and long-standing, and now (it’s about) looking at what their approach will be with these new leaves — so whether they’ll continue benefits or stop benefits.”

It’s also important to look at the human rights implications of those actions, said Turc, “so not wanting to discriminate against employees on prohibited grounds, and treating employees fairly.”

Attendance management and attendance tracking are also going to be very important, said Bouwmeester.

“Now there’s a greater impetus to do it because you need to know if you’re getting into trouble early around attendance management, and wellness programs — make attendance a positive part of your wellness for your employees.”

It makes sense to be more proactive, she said.

“This really incentivizes you to have an employee assistance program (EAP) that is in place, well-communicated and ideally accessed so that you get support for individual workers and their families, so these leaves don’t become necessary. So the whole ‘Stitch in time saves nine’ will really be incentivized because you have job-protected leave now. From a business perspective, the investment on the back-end should pay off in spades on the front-end.”

New unpaid leaves

Personal and Family Responsibility Leave — providing up to five days of job protection per year for personal sickness or short-term care of an immediate family member.

Long-Term Illness and Injury Leave — providing up to 16 weeks of job protection per year for long-term personal sickness or injury.

Bereavement Leave — providing up to three days of job protection per year for bereavement of an immediate family member.

Domestic Violence Leave — providing up to 10 days of job protection per year for employees addressing a situation of domestic violence.

Citizenship Ceremony Leave — providing up to a half-day of job protection.

Critical Illness of an Adult Family Member — providing up to 16 weeks of job protection for employees caring for family.

Critical Illness of a Child — providing up to 36 weeks of job protection for parents of critically ill or injured children.

Death or Disappearance of a Child — providing up to 52 weeks of job protection for parents if their child disappeared, or up to 104 weeks if a child died as a result of a crime.

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