Change to amendments would be first for Canada
Employees in Manitoba who are victims of domestic violence may soon be able to take time off work to deal with the problem without having to worry about losing their job or, in some cases, their pay.
The Manitoba legislature is considering amendments to the province’s Employment Standards Code that would add leave for domestic violence to the list of job-protected leaves governed by the legislation. If passed, the province would be the first in Canada to implement a leave specifically for domestic violence.
Labour and Immigration Minister Erna Braun tabled Bill 8, The Employment Standards Code Amendment Act (Leave for Victims of Domestic Violence, Leave for Serious Injury or Illness and Extension of Compassionate Care Leave), in the Manitoba Legislative Assembly in late November.
"When there is violence at home, you shouldn’t have to worry about holding onto your job as you escape and rebuild," Braun said. "This proposed first-in-Canada legislation would ensure that victims of domestic violence have financial security, job protection and flexibility to take time away from work to recover from violence."
The time off would consist of two leaves, one for up to 10 days and another for up to 17 weeks. The leaves would be available in 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. Employers would have to pay employees for up to five days of the leave. There would be no requirement to pay for the remaining days.
"Paid leave is an important component of this bill as it will help provide victims with short-term financial stability during an initial crisis or an emerging situation, such as when a victim takes steps to leave an abusive relationship or relocates to a safe place," Braun said.
Workers could only take the leave for certain reasons related to domestic violence, including 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.
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, an employee would have to specifically request it when notifying the employer of the leave and provide their 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.
For the paid days of leave, the amount an employer would have to pay would be equal to the employee’s wages for regular hours of work on those days. If the hours of work or wages varied from day to day, the 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 employees with paid sick leave benefits or other paid leave benefits that exceed 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 of domestic violence leave.
Labour groups have applauded the legislation, saying it will give victims of domestic violence the time and space they need to seek help.
Barb Byers, secretary-treasurer of the Canadian Labour Congress (CLC), said, "(Research shows) that a significant number of workers experience domestic violence, and that the violence follows people to work, putting jobs and workplace safety at risk."
Domestic violence survey
The CLC and Western University in London, Ont., did a survey on domestic violence in the workplace. The results, released in 2014, found Canadian employers lose $77.9 million a year to the direct and indirect impacts of domestic violence.
The survey, Can Work be Safe when Home Isn’t?, found that 33.6 per cent of respondents reported they had experienced domestic violence from an intimate partner and 35.4 per cent said they had at least one co-worker who they believed was currently facing domestic violence or had in the past.
Of those who reported domestic violence, 38 per cent said it affected their ability to go to work and 8.5 per cent said they lost their job because of it. The survey also found three-quarters of respondents said they thought workplace supports such as paid leave and safety policies could reduce the impact of domestic violence on the lives of workers.
Business groups cautious
Business representatives have been more cautious about the proposed leave. The Manitoba Chambers of Commerce declined to comment on the bill, saying it needed to do more research on the issue. Cory Kolt, the organization’s director of policy and communications, said that since there was little to no consultation with business before the government announced plans for the leave in its throne speech last fall, businesses do not yet have a full understanding of how the bill could impact them.
Braun said the government had discussed the bill with its Labour Management Review Committee, made up of business and labour representatives. However, she acknowledged committee members did not reach a consensus on domestic violence leave. Braun added the government would further consult with employers and unions on drafting regulations.
Employer responsibilities
While the Manitoba legislation would not require employers to pay employees for anymore than five days of leave, it would oblige them to save a job for the employee. Similar to other leaves provided for under the code, employers would have to reinstate employees returning from leave 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.
Employers would be prohibited from laying off or terminating an employee eligible for the leave because the employee intended to take the leave or took it.
For pension and benefit purposes, the employee’s employment before and after the leave would be continuous.
The new leave would likely require some additional administrative work for employers. Besides the requirement to pay employees for up to five days of leave, if they requested it, payroll departments would also have to keep records of the paid days of leave.
The amendments specify that employers would have to keep records of the dates and number of days taken as paid leave and the amount paid to an employee for each paid day of the leave.
The amendments would also implement confidentiality requirements for employers and employees who administer employment leaves. Employers would be required to keep all information about a leave for an employee confidential and be prohibited from disclosing the information to anyone unless they needed the information to carry out their duties, the employer was required by law to disclose the information or the employee gave consent.
"This provision is intended to protect personal information and personal health information of employees," Braun said.
"As it applies to domestic violence leave, confidentiality can also be an important step to protecting the employee’s personal safety, given that we know that incidents of domestic violence can increase when a victim is taking steps to end the relationship," she added.
Employers or employees who do not comply with the confidentiality requirements could face penalties. For an employee, that could mean a fine of up to $2,500. For an employer, it could be a fine of up to $5,000, increasing to $25,000 for an employer that is a corporation.
In addition, directors could face individual fines of up to $5,000. For subsequent offences, a jail term of up to three months is possible.
To date, no other provincial or territorial governments have said whether they are considering introducing similar legislation in their jurisdiction.
