Federal Government Publishes Regulations Regarding Paid Medical Leave and Guidance on “Stacking” with Existing Leaves

By:?Michael Babe

On November 7, 2022, the federal government published?Regulations Amending Certain Regulations Made Under the Canada Labour Code (Medical Leave with Pay)?(Regulations), regulatory amendments which will give effect to the new paid medical leave provisions under the?Canada Labour Code?(Code). Guidance on the issue of “stacking” of the new paid medical leave with paid leaves under a collective agreement or employment contract was released on the same date.

The new?Code?provisions, which come into force on December 1, 2022, will entitle all federally regulated employees who are subject to Part III of the?Code?to up to 10 days of paid medical leave per calendar year.

All employees who complete 30 days of continuous service will earn three days of paid medical leave, after which they will accrue one day of paid medical leave per month, to a maximum entitlement of 10 paid days per year. For current employees, this means that they will accrue three paid days as of December 31, 2022. Employees hired after December 1, 2022 will accrue three paid days upon completing 30 days of continuous employment. Employees are able to carry over accrued but unused paid medical leave to the next year, but doing so will reduce the maximum number of paid days they accrue in that year.

Among other things, the?Regulations:

• clarify that the definition of “regular rate of wages” found in section 17 of the?Canada Labour Standards Regulations?applies to the paid medical leave
• add medical leave with pay to the list of paid leaves that are counted as time worked for the purposes of hours of work averaging
• create new record-keeping provisions for employers related to each period of paid medical leave taken by an employee (the date of commencement and end of each leave period, the year of employment in respect of which the leave is earned, the number of days of leave carried over from a previous year, a copy of any written request for a medical leave certificate and a copy of any medical certificates provided by employees)
• require employers who use a year other than a calendar year to calculate the entitlement to annual vacation of their employees to use that same year for the purposes of determining paid medical leave entitlements
• classify violations of the new paid medical leave and the related record-keeping requirements for the purposes of the?Code’s administrative monetary penalties regime

The?Regulations?will come into force on December 1, 2022, when the new paid medical leave provisions of the?Code?come into force.

Stacking – Medical Leave with Pay Guideline

On November 7, 2022, Employment and Social Development Canada also published a new interpretation, policy and guideline,?Stacking – Medical Leave with Pay?(Guideline), effective December 1, 2022.

This Guideline provides clarification about the scope of the paid medical leave where employees already have an entitlement to paid sick days under a collective agreement or employment contract. In short, employees will not be able to “stack” the paid?Code?days with paid sick leave days under a collective agreement or contract of employment, provided that certain conditions are met.

According to the Guideline:

• Paid Sick Leave Taken Prior to December 1, 2022: Paid sick leave taken before December 1, 2022 under the terms of a collective agreement or employment contract will not reduce an employee’s entitlement to paid?Code?medical leave days as of December 1, 2022. As of December 31, 2022, current employees with at least 30 days of continuous service will accrue their first three paid?Code?days, regardless of whether they used paid sick days under a collective agreement or employment contract earlier in 2022.
• Paid Sick Leave Generally: Paid sick leave taken under a collective agreement or employment contract will count towards an employee’s paid medical leave entitlement under the?Code, provided that the two leaves are similar in scope and all of the following criteria are met:

(i) the employee can take the leave provided for under the collective agreement or employment contract for one or more of the reasons listed in the new s. 239(1) and (1.1) of the?Code?(i.e., medical appointments during working hours, personal injury or illness, organ or tissue donation by the employee, or personal quarantine)

(ii) the employee may take the leave in one or more periods (the employer may require that those periods of leave are not less than one day in duration)

(iii) the employer does not require the employee to provide a medical note if the employee is absent for fewer than five consecutive days

(iv) the employee is entitled to:

(a) receive their regular rate of wages for each day of the leave

(b) maintain and accumulate pension, health and disability benefits, as well as seniority, during the leave

(c) be reinstated after the end of the leave

If any of the above criteria are not met, the paid sick leave under a collective agreement or employment contract will not count towards the?Code?paid medical days.

Should you have any questions about the new paid medical leave under the?Code, please contact your regular Hicks Morley lawyer.

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ?

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Tags:?Canada Labour Code