Federal employers: Get ready for the new medical leave with pay requirements
Frédéric Desmarais, CRHA, and Kathleen Houlihan, Norton Rose Fulbright Canada
The Act to amend the Criminal Code and the Canada Labour Code[1], as amended in Bill C-19, the Budget Implementation Act[2], contains modifications to the Canada Labour Code[3] (the “Code”) providing for medical leave with pay to all federal employees. Subsequently, modifications were brought to the Canada Labour Standards Regulation[4] (the “Regulations”) regarding the payment method for the medical leave with pay[5]. These modifications come into force on December 1, 2022.
All employees of federal employers are entitled to medical leave with pay, subject the conditions stipulated in the Code and Regulations. This includes full-time, part-time, casual and contract employees.[6] Even employees with multiple employers are deemed to be continuously employed for the purpose of the provisions on medical leave with pay.[7] While there was a possibility that the medical leave with pay provisions would only apply to employers with 100 or more employees,[8] this provision does not come into force on December 1, 2022, and will only come into force following an order of the Governor in Council. As of now, there is seemingly no plan for the coming into force of this provision.
Employees may take a medical leave with pay for the following reasons:
- Personal illness or injury;
- Organ or tissue donation;
- Medical appointments during working hours; or
- Quarantine
A. Accrual
As of the coming into force of these new amendments, employees of federal employers will become progressively entitled to 10 days of paid medical leave per year.[9] While most employers may calculate this on the basis of a calendar year, employers may also use the period of 12 months used in the calculation of annual vacation.[10]
Employees will accrue their first three paid days of medical leave after a 30-day qualifying period. Subsequent to this qualifying period, employees must complete an additional calendar month of employment with the employer, following which they will progressively accrue one additional paid day of leave per calendar month.[11]
This means that employees who are currently employed with a federal employer will begin their qualifying period as of December 1, 2022, and will obtain their first three days of paid leave as of December 31, 2022. They will then need to complete one calendar month of employment with the employer, namely January 2023, after which they will obtain one paid day of leave per month. Therefore, they will accrue their fourth day of leave on February 1, 2023.
The accrual rules are the same for new employees hired after December 1, 2022. For example, if an employee is hired on January 14, 2023, the 30 day qualifying period ends on February 13, 2023, at which point the employee will have acquired their first three days of paid medical leave. This employee must then complete one calendar month of employment. Given that their qualifying period ends in the middle of February, the next full calendar month is March. The employee will then earn their fourth day of medical leave after having completed the full month of March, meaning on April 1, 2023.
It is worth reiterating that the initial qualifying period is 30 days, and not a calendar month. However, the subsequent period must be a full calendar month, which begins on the next first of the month closest to the end of the qualifying period. Employees then receive one additional day on the first of each calendar month, up to a maximum of 10.
Employees are entitled to carry-over any unused days from one year to the next. However, their entitlement to accrual is diminished by the amount that they carry over.[12] At no point will an employee be entitled to more than 10 days of paid medical leave per year. As an example, if an employee carries over seven (7) days from one year to the next, they may only accrue three (3) days in the subsequent year.
B. Use of medical days with pay
An employee may make use of one (or more) of their paid days of medical leave on any day where they are scheduled to work or expected to work. Employees are entitled to many types of leave under both the Code and possibly through employer policies or collective agreements (e.g.: paid personal days[13]). The decision to categorize a particular day off as being a day of medical leave with pay as opposed to a day off under alternative policies is at the discretion of the employee, and not the employer.[14] However, the employer can require that each period of leave be not less than one day in length.[15]
An employee who makes use of a day of medical leave with pay is paid their regular rate of wages for their normal hours of work.[16] The regular rate of wages for an employee whose hours of work differ from day to day or who is paid on a basis other than time (e.g.: by the kilometer or on commission) is an average of the employee’s daily pay (excluding overtime) for the 20 days worked prior to the first day of medical leave with pay.[17] Note that this is an average of days that the employee actually worked, and not simply the 20 previous days. Alternatively, a collective agreement may specify a different calculation method. This will be applicable to days of medical leave with pay if this method relates specifically to medical leave with pay or if it is applicable to all forms of leave.[18]
An employer may request that an employee provide a medical certificate from a health care practitioner[19] to justify their period of medical leave only after five (5) or more consecutive days of absence.[20] The employer must make this request no more than 15 days after the employee’s return to work.[21]
C. Record Keeping
Employers are required to keep detailed records of their employees’ use of medical leave with pay, including the following, for a period of at least three (3) years:
- The pay provided for as medical leave with pay;
- Starting and ending dates of the medical leave;
- The year of employment in respect of which the leave was earned;
- The number of days of leave carried over from a previous year;
- A copy of any request for a medical certificate and the corresponding certificate.[22]
Medical Leave with Pay and Existing Entitlements
An employee is not necessarily entitled to additional days of paid medical leave under these new provisions of the Code if they are already eligible to substantially similar entitlements under their employment contract, an employer policy or a collective agreement.
If an employee is already entitled to certain paid sick days or medical days that are similar in scope and condition to those newly provided under the Code, then those days will be considered as equivalent to the newly provided medical leave with pay.[23] This means that employees must be able to take their existing leaves for at least the same reasons (e.g.: illness, injury, organ or tissue donation, medical appointment or quarantine) and subject to at least the same conditions (e.g.: same or greater pay).
However, if an existing entitlement to sick leave is greater in scope or more favourable than what is now provided by the Code, then the employee will continue to be eligible for the greater entitlement. For example, many employers, either through policy or under a collective agreement, provide for a number of paid sick days at the beginning of every year, without any necessary accrual period. This is considered a greater benefit to which employees will continue to be entitled, despite the new provisions in the Code.
What should employers keep in mind?
Given the complex accrual method, employers should be ready to implement processes for keeping track of the accrual of days of medical leave with pay and their use and carry-over. Employers should also be prepared to respond to questions from employees who are requesting a medical leave of absence. In addition, employers should update their record keeping processes and payroll practices to remain in compliance with these new provisions. Finally, employers should review their existing employment contracts, policies and collective agreements, and compare them against the new medical leave with pay provisions under the Code, in order to determine what, if anything, they must now provide for their employees.
This article was first published on the site of the Ordre des conseillers en ressources humaines agréés du Québec.
[1] An Act to amend the Criminal Code and the Canada Labour Code, SC 2021, c 27 [Act].
[2] Bill C-19, Budget Implementation Act, 1st Session, 44th Parliament, 2022. [Bill C-19].
[3] Canada Labour Code, RSC 1985, c L-2 [Code].
[4] Canada Labour Standards Regulations, CRC, c 986 [Regulations].
[5] Regulations Amending Certain Regulations Made under the Canada Labour Code (Medical Leave with Pay), SOR/2022-228. [Amending Regulations].
[6] Note that the medical leave with pay provisions do not apply to student interns who are not required to be paid pursuant to Standards for Work-Integrated Learning Activities Regulations, SOR/2020-145.
[7] Amending Regulations, supra note 5 at s. 4.
[8] Bill C-19, supra note 2, at s. 424.
[9] Bill C-19, supra note 2, at s. 423(1); see also: Medical leave with Pay, IPG-118 [IPG-118].
[10] Amending Regulations, supra note 5 at s. 6.
[11] Bill C-19, supra note 2, at s. 423(1).
[12] Ibid at s. 423(2).
[13] Code, supra note 3 at s. 206.6.
[14] IPG-118, supra note 9.
[15] Act, supra note 1 at s. 7(1).
[16] Ibid.
[17] Amending Regulations, supra note 5 at s. 3. See also IPG-118, supra note 9.
[18] Ibid. To note: this calculation of medical leave with pay is the same as was introduced for paid personal days in previous (though recent) amendments to the Code and Regulations.
[19] A health care practitioner as defined in the Code at s. 166: “a person lawfully entitled, under the laws of a province, to provide health services in the place in which they provide those services”.
[20] Bill C-19, supra note 2 at s. 423(3); IPG-118, supra note 9.
[21] Ibid.
[22] Amending Regulations, supra note 5 at s. 5(2) and 5(3).
[23] Stacking – Medical leave with Pay, IPG-119 [IPG-119].
