Paid or unpaid leaves? That is the question

While Ontario cuts back on paid work leaves, other jurisdictions embrace them
By Sheila Brawn
|Canadian Payroll Reporter|Last Updated: 01/14/2019

As a new year begins, payroll professionals in some jurisdictions have to get used to new labour standards rules for leaves of absence.

Ontario, Quebec, and Newfoundland and Labrador are expected to implement new requirements on Jan. 1. Other jurisdictions have proposed changes that may take effect later this year.

A key element of the amendments is paid versus unpaid leave. While some jurisdictions are expanding paid leaves, one is pulling back from it.

One of the provinces moving towards more paid leaves is Quebec.

Recent amendments to its Act respecting labour standards, slated to come into force on Jan. 1, require employers to pay employees for the first two days that they take off each year for certain types of leave.

The leaves include those that provide up to 26 weeks off work for illness, injury, organ or tissue donation, and domestic or sexual violence, and up to 10 days for family responsibility leave. Employees are entitled to the paid days once they have at least three months of uninterrupted service with their employer.

For each paid day off, employers must compensate employees at least 1/20 of the wages they earned in the four full workweeks before the day off, excluding overtime pay. For commission-based employees, the pay must equal at least 1/60 of the wages that they earned in the 12 full workweeks before the day off.

Employers are not required to pay employees for more than two days of leave each year if they take more than one of the leaves in the same year for different reasons.

Quebec has also implemented new bereavement leave rules that provide employees with two paid days and three unpaid days off if a close relative (for example: spouse, child, parent, or sibling) dies. Previously, employees were entitled to one day with pay and four unpaid days.

Another change removes a requirement for employees to have at least 60 days of uninterrupted service to be eligible for paid time off when their child is born or adopted or there is a termination of pregnancy in or after the 20th week of pregnancy.

Employers must now pay all employees in these situations for two of the five days of leave allowed under the act.

While the government that was behind the new measures is no longer in power, Quebec’s recently elected government has not indicated that it plans to reverse the changes.

Newfoundland and Labrador has also added a new paid leave to its Labour Standards Act. Scheduled to take effect on Jan. 1, it allows employees with 30 days of service to take time off if they or a person for whom they are a parent or a caregiver experiences family violence.

The leave consists of three paid days and seven unpaid days in a year. Similar to other provinces, employees must take the leave for specific purposes, including receiving medical care, counselling, victim’s services, or legal assistance, and relocating.

To calculate pay for the three paid days, payroll administrators must multiply the employee’s hourly rate by the average number of hours the employee worked in a day in the three weeks right before the leave.

Other provinces that provide paid time off for domestic or sexual violence include Manitoba (five days), New Brunswick (first five days), Ontario (first five days), and Quebec (first two days). Alberta and Saskatchewan also have domestic violence leaves, but there is no requirement to pay employees.

More jurisdictions are expected to add domestic violence leave to their labour standards laws this year. Prince Edward Island has passed — but not yet implemented — amendments that would allow eligible employees to be paid for three of 10 days of leave in a year.

Nova Scotia may also add pay requirements for domestic violence leave. Last spring, the province’s legislature passed amendments to create a two-pronged leave for employees who are victims of domestic violence or whose child is a victim.

The leave would consist of up to 10 days — which employees could take all at once or intermittently — and up to 16 weeks, taken in one continuous period. While the legislation, which has not been implemented yet, states that the leave would be unpaid, the government has indicated that it may change this.

When a legislative committee studied the amendments, opposition party members suggested that the first five days of leave be paid. Although the government did not amend the bill to require paid leave, it included a provision allowing pay requirements to be added through regulations under the Labour Standards Code.

Labour and Advanced Education Minister Labi Kousoulis said the Nova Scotia government may hold public consultations to determine if there should be a pay requirement and that regulations would be an easy way to implement it.

“If after doing public consultation, whatever the process and the outcomes are, the amendment can happen a lot more quickly (through regulation), then (sic) having to come into the legislature,” he said.

The federal government is also expected to implement new paid leaves this year. In the fall, it tabled legislation that would require federally regulated employers to pay employees for the first three of five days off per year for personal leave if they have at least three consecutive months of employment with their employer.

The leave would allow employees job-protected time off work to deal with illnesses/
injuries or family responsibilities, or to attend their citizenship ceremony. The pay for the time off would be their regular rate for their normal work hours.

Other amendments would provide up to 10 days off a year for family violence leave, with employers required to pay employees for the first five days if they had at least three months of service.

In addition, the proposed legislation would enhance some existing leaves. For instance, the government would expand the length of parental leave from 63 weeks to 71 for parents who share the leave under a proposed new EI parental sharing benefit.

New bereavement leave rules would allow employees to take five days off — up from three days — if an immediate family member died. The first three days would continue to be paid for employees with at least three months of service.

The new/enhanced leaves would be in addition to a leave for traditional Aboriginal practices passed in 2017, but not yet enacted. It would allow Aboriginal employees with at least three months of service to take up to five days off each year to take part in traditional practices, such as hunting, fishing and harvesting.

One province that is going a different way with paid leave is Ontario.

As of Jan. 1, it eliminated a requirement that employees have 10 days of personal emergency leave each year, with the first two days paid for those with more than one week of service.

It replaced the time off with three days of sick leave, three days of family responsibility leave, and two days of bereavement leave. Unlike personal emergency leave (PEL), employers are not required to pay employees for any of the days off.

Business groups applauded the change, saying that the paid days off implemented last year by the previous government were too onerous and hurt businesses financially.

Workers’ rights advocates, however, said the change was detrimental to employees and could force some of them to go to work while sick.

While other jurisdictions have not announced new paid leaves, some are considering changes affecting unpaid leaves.

Yukon is examining whether to give employees more time off for parental leave and compassionate care leave and whether to add a new leave for critically ill adult family members.

British Columbia is planning to update its rules to reflect the changing nature of work, but has not indicated whether it plans to expand existing leaves, introduce new ones or require employers to pay employees for some of the days of leave.

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