First province in Canada to include leave for domestic violence
Manitoba has passed groundbreaking changes to its employment standards law.
Last month, the province’s legislature approved amendments to the Employment Standards Code that will add a leave for domestic violence to the list of job-protected leaves covered by the legislation. It is the first jurisdiction in Canada to do this.
"We’re proud that Manitoba is the first province to be taking this kind of significant legislative action to help put an end to domestic violence," says Kevin Rebeck, president of the Manitoba Federation of Labour. "(W)e hope that other provinces are quick to follow suit."
Manitoba is also a leader with another type of leave. Amendments to the code passed at the same time as the domestic leave changes create a new, unpaid 17-week leave of absence as of April 1 for employees who suffer a serious illness or injury.
The province is now one of only a few Canadian jurisdictions that provide a job-protected long-term leave from work for ill or injured employees. Most jurisdictions only allow employees to take a specified number of days off work for sickness each year (generally ranging from three to 12).
Quebec and the federal government (under the Canada Labour Code for federally regulated employers and employees) are the only other jurisdictions that allow employees to take many weeks off work for a sick leave.
The government has not yet said when the new domestic leave standards would come into effect. Once in force, the time off would consist of two leaves, one for up to 10 days and another for up to 17 weeks each 52-week period.
Eligible employees would be allowed to take the 10 days off in one continuous period or intermittently as needed, but they would have to take the 17-week leave in one unbroken period.
Unlike other leaves allowed under the code, employers would have to pay employees for up to five days of a leave for domestic violence. There would be no requirement to pay employees for the remaining days they take off.
Rebeck says allowing employees to take time off work for domestic violence and paying them for some of the days will take some of the pressure off them.
"It’ll mean one less thing to worry about during an already stressful and trying time. There are already so many other barriers to escaping domestic violence; fearing for your job shouldn’t be another one," he told a Legislative Assembly committee studying the amendments.
Paid leave requirements
William Gardner, chair of the Manitoba Employers Council, says that while he sees domestic violence as a serious problem, he has concerns about domestic violence leave, especially the paid leave requirements.
"There’s no evidence of any mischief that needs to be cured by legislation. There’s no evidence of any Manitoba employer not responding appropriately to a genuine need for time off for someone who’s been the victim of domestic violence," he said in a presentation to the Standing Committee on Justice.
He also said it was unfair to make employers pay employees on domestic violence leave. "I have a major concern about legislation which requires employers to pay as if they’re the source of the problem," he said. Instead, Gardner recommended ways to allow victims to recover lost wages from their abusers.
Rebeck did acknowledge that the paid leave provisions may increase expenses for employers, but he added that domestic violence already costs them.
"(E)mployers already bear significant costs as a result of domestic violence: increased absenteeism, higher replacement, recruitment and training costs, reduced productivity, higher employer health expenses, lower employee morale and strained co-worker relationships and potential harm when violent abusers approach or enter the workplace. Justice Canada has put those costs as high as $78 million annually," he said.
"Many employers already try hard to provide meaningful support to employees affected by domestic violence. Paid leave provides another tool to help build healthier workplaces," Rebeck added.
To be eligible for the leave, an employee would have to be a victim of domestic violence and have been employed by the same employer for at least 90 days. Employees who wished to take the leave would have to give their employer as much notice as would be practicable in the situation.
To be paid for up to five days of the leave, an employee would have to specifically request it when notifying the employer of the leave. He would also have to provide his employer with reasonable proof of the need for the leave.
For an unpaid leave, employees would only have to provide proof of the need for the leave if their employer required it. The government would have the authority to create regulations specifying the type of proof an employee would have to provide.
The amount paid would have to be the same as the employee’s wages for regular hours of work on the days taken off. If the employee’s hours of work or wages varied from day to day, the amount of pay would be equal to five per cent of the employee’s total wages, excluding overtime, for the four weeks immediately before the leave.
If an employer provided its employees with paid sick leave benefits or other paid leave benefits that exceeded employment standards minimums (such as more paid vacation than required by law), the employer could require employees to use those benefits for their paid days off unless a collective agreement provides otherwise.
Employees would only be allowed to take the domestic violence leave for specific reasons, such as to seek medical care or psychological or other professional counseling, to obtain help from a victim services organization, to temporarily or permanently relocate, or to seek legal or law enforcement assistance.
Serious illness, injury
While labour and employer representatives did not see eye to eye on the need for paid leave for domestic violence, they found common ground on the new leave for a serious illness or injury.
Gardner said the two sides were able to work together on the government’s Labour Management Review Committee to reach a consensus on the leave.
Rebeck praised the government for adding an illness/injury leave to the code. "Without these amendments, a worker could find herself in the perverse situation of qualifying for EI benefits to be away from work, but not being permitted to take leave from her job in Manitoba."
The illness/injury leave will only be for employees who have worked for the same employer for at least 90 days and who have a physician’s certificate verifying that they are incapable of working for at least two weeks because of a serious illness or injury.
Employees must take the leave in one continuous period, unless an employer and an employee agree to a different schedule or a collective agreement provides otherwise.
Before an employee comes back to work, an employer may require the employee to provide a doctor’s note verifying that the employee is fit to return.
With all of the leaves permitted under the code, employers are required to reinstate employees returning to work in the position they held when the leave began or provide them with a comparable position with not less than the wages and benefits they earned right before taking the leave.
They are also prohibited from laying off or terminating an employee eligible for a leave because the employee intended to take the leave or took it.
Exceptions apply for layoffs and terminations not related to the leave.
As with other leaves covered under the code, payroll and human resources departments would have to ensure that they keep good records relating to domestic violence and serious illness and injury leaves, including the dates and number of days taken off for each leave.
If an employee is paid for time off during a domestic violence leave, payroll and HR would also have to keep records of the dates and number of days of paid leave and the amount paid to the employee for each paid day off.
New confidentiality standards, which are expected to come into effect at the same time as the leave for domestic violence, would require employers to keep all information about a leave for an employee confidential.
Employers or employees who do not respect the confidentiality requirements could face fines or other penalties.
