Employment law governs the rights and obligations between individuals and their employers. The foundations of employment law arise from the common law in most provinces and the civil law of Québec. The main obligations of the employer are to provide work agreed to, pay the remuneration, and provide a safe workplace. The employee must execute the work agreed to and be loyal to the employer. The practice of employment law generally involves the negotiation and drafting of individual employment contracts, advice with respect to the numerous aspects of the main obligations, the drafting of non-solicitation and non-competition clauses, golden parachute compensation plans, and arbitration clauses. It involves litigation arising from the employment relationship, including unlawful or dismissal actions, as well as the application of provincial and federal related statutes such as Labour Standards, Human Rights, and Health and Safety legislation.
Major Changes to the Canada Labour Code
As set out by Fasken LLP lawyers Shane Todd and Rachel Devon, changes came into force on September 1, 2019.1
“The changes apply to a dizzying number of labour standards from scheduling to breaks, vacations to holiday pay, and leaves of absences, among others. Given the sweeping nature of these reforms, the changes will have a significant impact on federally regulated workplaces.”
Below is a high-level summary of the amendments under Bill C-63, Budget Implementation Act, 2017, No. 2 and Bill C-86, Budget Implementation Act, 2018, No. 2. Amendments coming into force at later dates have not been summarized. Managers and certain employees are excluded from several of these rules.
• 24 hours’ notice of shift change: Employers must provide 24 hours’ written notice of any change or addition to a work period or shift. This requirement will not apply if the change or addition (i) is the result of the employee’s request for a flexible work arrangement, or (ii) is necessary to deal with an unforeseeable emergency.
• Right to refuse overtime for family responsibilities: Employees will have the right to refuse overtime in order to carry out responsibilities related (i) to the health or care of a family member, or (ii) to the education of any family member who is less than 18 years old, provided the employee has first taken “reasonable steps” to carry out the responsibility by other means.
• 96 hours’ advance notice of schedule: Employers must provide 96 hours’ notice in writing of an employee’s work schedule. This rule will not apply where (i) a collective agreement specifies, (ii) the scheduling change results from the employee’s request for flexible work arrangements, or (iii) it is necessary for the employee to work in order to deal with an unforeseeable emergency.
• Paid time off in lieu of overtime: Time off may be granted of not less than 1.5 hours of time off with pay for each hour of overtime worked. The time off must be used within three months unless otherwise agreed (but not longer than 12 months or any other period specified in a collective agreement), failing which overtime pay must be paid out.
• Modified work schedules: The Code will allow modified work schedules, including those under which the hours exceed the maximum set out in the Code, to apply to individual employees, not just groups of employees.
• Medical breaks: Employees may take any unpaid breaks necessary for medical reasons. Employers will have the right to request a certificate from a “health-care practitioner” indicating the length and frequency of medical breaks needed, and any other information prescribed by regulation. Regulations may exempt any class of employees from these provisions if it cannot reasonably be applied to them or specify circumstances in which these breaks cannot be taken.
• Nursing breaks: An employee who is nursing may take any unpaid breaks necessary to nurse or express breast milk. No medical or other certificate will be required. Regulations may exempt any class of employees from these provisions if it cannot reasonably be applied to them or specify circumstances in which these breaks cannot be taken.
• 30-minute breaks every five hours
• Eight-hour rest periods: Employees must be granted a rest period of at least eight consecutive hours between work periods or shifts. The rest period can be postponed or shortened if the employee must work to deal with an emergency.
• Right to request flex work
• Eligibility for leaves: The minimum length of service requirement has been eliminated for entitlement to sick leave, maternity and parental leave, leave related to critical illness, and leave related to death or disappearance of a child.
• Leave for traditional Aboriginal practices: Aboriginal employees who have completed at least three consecutive months of continuous employment may take up to five days of unpaid leave each calendar year to participate in traditional Aboriginal practices.
• Personal leave: Employees will be entitled to a new personal leave of up to five days per calendar year, including three days with pay, after three consecutive months of continuous employment. Employers may request supporting documentation no later than 15 days after an employee returns to work and the employee must provide it if reasonably practicable. This leave may be taken to deal with:
—personal illness or injury (in addition to medical leave);
—responsibilities regarding the health or care of a family member;
—responsibilities regarding the education of a family member who is less than 18 years of age;
—an urgent matter concerning the employee or a family member;
—attending one’s Canadian citizenship ceremony; or
—additional reasons prescribed by regulation.
- Todd, Shane, and Rachel Devon. “Sweeping Changes to the Canada Labour Code in Force September 1, 2019 - Federal Employers, Are You Prepared?” Fasken Martineau DuMoulin LLP, August 9, 2019. https://www.fasken.com/en/knowledge/2019/08/federal-sector-update-changes-to-the-canada-labour-code.