Legislative changes in Alberta, Ontario, Saskatchewan
Leave for domestic violence. Personal/family responsibility leave. Critical illness leave. Leave for traditional aboriginal practices. Citizenship ceremony leave. These are just some of the new leaves with which payroll professionals in several Canadian jurisdictions must now familiarize themselves.
Over the last couple of months, governments in Alberta, Ontario, and Saskatchewan have implemented new leaves under their employment standards laws. The federal government has also recently passed amendments to the Canada Labour Code (CLC) that, once in force, will allow federally regulated employees to take new leaves of absence.
Like other leaves permitted under employment standards, employers must allow eligible employees to take time off for the new leaves. They are also prohibited from dismissing, suspending or otherwise punishing employees for taking them.
With so many new leaves, it is a good time to provide an overview of the main requirements for them:
Domestic Violence Leave
Four provinces now permit employees to take time off work if they or one of their children are victims of domestic violence. Manitoba was the first jurisdiction to implement domestic violence leave in June 2016.
In December, Saskatchewan passed legislation to allow for it. In January, Alberta and Ontario followed suit. The federal government has passed — but not yet enacted — provisions for family violence leave.
The leaves in each of the jurisdictions are similar, but have notable differences. All but the CLC require employees to work for their employer for a minimum period before being eligible for the leave.
Alberta and Manitoba require a minimum of 90 days of service. Ontario mandates a minimum of 13 consecutive weeks of employment, while Saskatchewan requires more than 13.
The reasons for the leave: to seek medical care for physical or psychological injuries caused by violence, to obtain help from a victim services organization, to obtain psychological or other professional counseling, to temporarily or permanently relocate; and to seek legal or law enforcement assistance.
In Manitoba and Ontario, domestic violence leave is made up of two components: days off and weeks off. Both jurisdictions allow employees to take up to 10 days off each year. In Manitoba employees may take up to 17 weeks off work. In Ontario, the maximum is 15 weeks.
In Alberta and Saskatchewan and proposed for the CLC, the leave is limited to a maximum of 10 days per year.
While employers in Alberta and Saskatchewan and under the CLC are not required to pay employees for the time off, there are pay obligations in Manitoba and Ontario. In Manitoba, the Employment Standards Code requires employers to pay employees for up to five of the days. When employees notify employers that they are taking a leave for domestic violence, they must specify which, if any, of the days they want to take as paid days off.
For those days, employers must pay employees at least their regular wages for regular hours of work. If the employees’ hours of work or wages for regular hours vary from day to day, the employer must pay them at least five per cent of their total wages, excluding overtime, for the four weeks immediately before the day(s) off.
If employers provide paid sick leave benefits or other paid leave benefits that are greater than those required under the code, they are allowed to require employees to use those benefits for the paid days off unless a collective agreement states otherwise.
In Ontario, employers are required to pay employees for the first five days of leave that they take each calendar year. The amount paid must equal the wages the employees would have earned if they had been at work on those days. If employees are paid by commission or piecework or by another performance-related measure, the employer must pay them their hourly rate (if they have one) or the minimum wage rate for the hours they would have worked had they not taken the leave, whichever is higher.
The Employment Standards Act, 2000 also specifies that employees who take a paid day of leave are not entitled to more than their regular rate or to a shift premium if the day off falls on a day or at a time when their employer would normally pay them overtime pay, a shift premium or both. Employees are also not entitled to premium pay if the paid day of leave falls on a public holiday.
In Ontario and Saskatchewan and under the CLC, employees on leave are entitled to continue participating in their employer’s benefits plan. In Saskatchewan and under the CLC, coverage continues if the employee pays any contributions required by the plan. In Ontario, employers must continue benefits coverage unless employees give written notice that they do not want to continue to make their contributions.
In all of the jurisdictions, the time an employee is off for domestic violence leave is included when calculating the employee’s length of service for determining vacation entitlement and notice of termination.
Employers have to keep copies of documents related to domestic violence leave, including information on the dates taken and the amount paid, if applicable. Because the nature of a domestic violence leave is so sensitive, jurisdictions require employers to keep any information related to the leave confidential.
Personal/Family Responsibility Leave
Alberta has added personal/family responsibility days to its employment standards law, joining most other jurisdictions in Canada that already provide it. The federal government will follow once it enacts CLC amendments.
In Alberta, employees with at least 90 days’ service may now take up to five days off each year if they are sick or need to attend to personal or family responsibilities. The CLC changes will permit leaves of up to three days for employees with at least three months’ service. Across Canada, days off for personal/family responsibility leave range from three to 12 per year.
While Alberta and CLC employers are not required to pay employees for the days off unless a collective agreement or employment contract states otherwise, the time taken is included when calculating an employee’s years of service for vacations, termination notice, etcetera.
Ontario has also made changes affecting personal/family responsibility leave. It has extended its 10 days of personal emergency leave to include all employees covered under the Employment Standards Act, 2000, rather than just those working for employers who regularly employ 50 or more workers.
It also now requires employers to pay employees for two of the 10 days.
Critical Illness Leave
The federal, Alberta and Ontario governments now allow employees to take time off work, without pay, to provide care or support for a critically ill family member. Previously, the CLC and Ontario limited the leave to parents of critically ill children under 18.
With the new leave in Ontario and under the CLC, employees with at least six months of service may take up to 37 weeks off work for a critically ill family member who is a child and up to 17 weeks for an adult. In Alberta, the eligibility period is 90 days and the leaves are 36 weeks for a child and 16 for an adult.
Leave for Traditional Aboriginal Practices
The federal government has passed, but not yet implemented, legislation that will allow federally regulated Aboriginal employees to take time off work, without pay, each year to take part in traditional Aboriginal practices, such as hunting, fishing, and harvesting.
Employees who are Indian, Inuit or Métis will be permitted to take up to five days off work each year for the leave if they have worked for their employer for at least three consecutive months of continuous employment.
Citizenship Ceremony Leave
On Jan. 1, Alberta added provisions to its Employment Standards Code allowing workers with at least 90 days of service to take a half-day off work without pay to attend a ceremony to receive their Canadian citizenship certificate. It joins a handful of other provinces that permit this.
Payroll professionals in other jurisdictions may also have to implement new leaves in the future, with Nova Scotia and British Columbia currently deliberating changes.
