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Archived - Discussion Paper on the Review of Labour Standards in the Canada Labour Code

II. Supporting Working Families

Since 1965, when Part III of the Canada Labour Code was enacted, the demographics of the workforce have changed significantly. More and more families are made up of dual income earners who have to manage the child-rearing and care-giving responsibilities that were once performed almost exclusively by women who did not enter the paid workforce. There is also a growing number of single-earner households headed by one parent (often the mother), who must somehow balance work and care-giving responsibilities. Many employees are also the primary caregivers of elderly or chronically ill relatives. A number of studies indicate that the struggle to manage the competing obligations of employment and family may not only affect employees’ health, but also their productivity at work.

As society has changed, so has Part III. Maternity leave was added in 1971; parental leave was added and expanded between 1984 and 2001; and compassionate care leave was added in 2003. Many employers, sensitive to the needs of their employees, have already adopted even more generous leave and vacation provisions, family-friendly schedules, employee wellness programs, workplace childcare centres and eldercare referral services. However, there may be a need to re-examine the Part III standards in order to provide a “level playing field” for employers, and also to ensure that employees across the federal sector are able to meet their responsibilities at work and home.

In the Commission’s view, Part III is outdated in some respects and needs to be amended. Many of the changes it recommended were intended to bring Part III into line with the standards in the provinces and territories. The Commission was also concerned that Part III may not always reflect human rights principles that are well-entrenched in Canadian law. Finally, some of the Commission’s recommendations were based on the standards that exist in other industrialized nations, including the UK and the United States. The Commission recommended:

• Adding provisions for unpaid, short-term family responsibility leave
• Expanding the scope of compassionate care leave, to make it more accessible
• Reducing the length of service requirements for maternity and parental leave
• Providing more flexibility for workers taking maternity or parental leave
• Adding provisions for short, unpaid breaks during the day for nursing mothers
• Clarifying that employees have a right to request flexible working arrangements
• Increasing the current duration of bereavement leave.

The Commission also made recommendations to ensure that employees in the federal sector can meet their civic or legal obligations as a juror or witness without the risk of losing their jobs. In addition, it recommended that Part III allow for some form of public emergency leave in case employees are unable to work due to a disastrous situation.

Another issue that is considered in this Discussion Paper is whether there is any need to legislate job-protected leave for an employee whose family member is injured or killed as a result of a violent crime or whose child is abducted. Although the Commission did not address this issue in its review, such legislation was recently adopted in Quebec, and the government of Saskatchewan has announced that it is considering similar amendments.[16] It is worthwhile examining this legislation in the context of other proposed changes relating to unpaid leaves of absence.

In assessing proposals for change, the key is to strike the right balance. Employers are confronting problems that were unforeseen 40 years ago: globalization; new technologies; prospective labour shortages; and evolving consumer demands. Employees are also struggling, as they attempt to reconcile the competing responsibilities of their jobs and their families. Provisions for flexible working time arrangements, including unpaid leaves of absence, are meant to ensure that employees have healthy working conditions with sufficient time for outside responsibilities. However, Part III must also recognize the need for businesses to operate without undue administrative or financial burdens.

1. Short-Term Family Responsibility Leave

Commission Recommendations:

Employees should be entitled to take up to 10 unpaid days of leave per year to meet responsibilities regarding the care or education of a child, or the health of a family member. Unused leave should not be carried forward from year to year. At the request of the employee, and with the consent of the employer, leave could be divided into periods shorter than one day. (R. 7.50)

There is currently no provision in Part III for short-term family responsibility leave of this nature. The range of leaves provided in Part III do not cover situations where an employee needs a brief amount of time off to meet short-term family obligations, such as caring for a sick child, attending a parent-teacher conference, or arranging home care for an elderly parent. Providing employees with a statutory right to short-term family responsibility leave seems to be a growing trend in Canada. In September 2001, only three provinces accorded family responsibility leave to employees. As of April 2008, nine provinces provided employees with this right.

The duration of family responsibility leave ranges from three to 12 days. Two provinces (Ontario and Quebec) provide leave of up to 10 days per year, while Saskatchewan provides up to 12 days. However, there are differences among these provinces in terms of eligibility requirements and the reasons for which such leave can be used.[17]

Providing employees with family responsibility leave may be reasonable, given that most Canadian jurisdictions now do so. It is important to consider what duration of family responsibility leave would be appropriate. Some would say that 10 unpaid days per year is reasonable when compared with the leave offered in the provinces. However, if 10 days of leave is provided, it may be important for employers to be able to verify that employees are taking leave for a legitimate reason.

For discussion:

• Is it appropriate to provide employees with the right to 10 unpaid days per year of family responsibility leave to meet obligations related to the care or education of a child and/or the health of a family member? If so, should there be any conditions or restrictions in regards to the leave?
• Should an employer have the option to require the employee to produce a statement or other proof of the need for leave, where the leave exceeds a certain duration of time (e.g., three days)?

2. Long-Term Family Responsibility Leave (Compassionate Care Leave)

Commission Recommendations:

• Employees should be entitled to take compassionate care leave to provide care or support to a family member who is seriously ill or who has had a serious accident, regardless of whether the illness or accident is likely to be fatal in a given period.
• The requirement that compassionate care leave be shared where two or more employees provide care to the same family member should be removed. Each employee should be entitled to the full period of leave. (R. 7.55)

Under Part III, employees may take up to eight weeks of compassionate care leave to provide care or support to a family member who is suffering from a significant medical condition with a significant risk of death in the next 26 weeks, as attested by a medical certificate. Where two or more employees provide care to the same person, they must share the leave between them.

Some argue that the requirement to provide proof that the family member is likely to die within a 26-week period is unduly harsh and may be psychologically disturbing for the caregiver, the patient and other family members. As well, employees may need time off to care for a family member who, although seriously ill or injured, is not likely to die in the near future.

In most Canadian jurisdictions, employees can only take compassionate care leave where the patient’s condition is likely to be fatal within 26 weeks. This reflects one of the key eligibility conditions for compassionate care benefits under the Employment Insurance (EI) system. However, unpaid leave under employment standards legislation does not have to be tied to EI benefits. Two provinces, Quebec and Saskatchewan, allow employees to take unpaid leave to care for a seriously ill or injured family member, without any requirement that the patient be likely to die.[18]

Other industrialized nations allow employees to take long-term leave to care for a seriously ill family member. For instance, in the United States, the Family and Medical Leave Act allows employees to take up to 12 unpaid weeks per year to care for a family member with a serious health condition (although any personal sick leave or parental leave taken that year is deducted from the 12 week entitlement). In Ireland, employees can take up to 104 weeks of carer’s leave to attend to a family member who requires full-time care and attention.

One option might be to provide a new form of unpaid leave in Part III for employees who need time off to provide care or support to a seriously ill or injured family member, regardless of whether the condition is likely to be fatal. This new type of long-term family responsibility leave would exist in addition to compassionate care leave. Long-term family responsibility leave could be taken for a limited number of weeks per year (e.g., four weeks). However, the combined duration of compassionate care leave and long-term family responsibility leave in respect of the same family member could not exceed a specified time limit (e.g., eight weeks).

Another possibility would be to expand the scope of compassionate care leave to apply to any case where the family member suffers from a serious illness or injury, without the need to prove a significant risk of death. The current duration of compassionate care leave is eight weeks per family member per medical certificate that attests the family member has a significant risk of death. Instead of this, there could be a yearly limit on the amount of leave that may be taken in a given year for any number of family members. For instance, in Quebec, the general limit is 12 weeks per year for all serious family illnesses.[19] In Saskatchewan, employees may take from 12 to 16 weeks, depending on the circumstances.[20]

The Commission also recommended that employees should no longer be required to share leave when caring for the same family member. There are at least five provinces (British Columbia, Manitoba, Nova Scotia, Quebec and Saskatchewan) where employees caring for the same family member each have a distinct entitlement to leave and are not required to share it.

One view is that each employee should be entitled to leave by virtue of his or her employment relationship with the employer, regardless of whether another employee under federal jurisdiction is also taking time off to care for the same family member. The other view is that it would place an unfair burden on an employer if two or more of its employees each wanted the full complement of leave in order to provide care or support to the same family member. Moreover, the patient’s need for care and support is perhaps reduced somewhat when another employee has already taken a leave of absence from work to be with the patient.

For discussion:

• Should employees be provided with the right to an unpaid leave of absence to provide care or support to a family member with a serious illness or serious medical condition, regardless of whether the condition is likely to be fatal within a given period? If so, what should be the duration of leave? Would it be preferable to create a new form of long-term family leave, or to expand the existing compassionate care leave? Should employees have to complete a minimum length of service with the employer in order to be eligible for leave?
• Would it be appropriate to remove the requirement for employees to share leave where they are providing care or support to the same family member?

[16] Canwest News Service, “Saskatchewan ponders work leave for crime victims”, Edmonton Journal, December 5 2007, available at http://www.canada.com/edmontonjournal/news/story.html?id=d48b79fd-c399-437b-a091-449a383e9dd2 (Internet accessed April 7, 2008).

[17] In Ontario, the right to leave only applies where the employer regularly employs 50 or more people. In addition, the ten-day period of leave is meant to be used not only for a family member’s illness or other urgent situation, but also for personal sick days and bereavement leave. In Saskatchewan, the 12 days of leave are also meant to cover personal sick days. Moreover, the right to leave does not apply where it can be demonstrated that the employee has a chronic record of absenteeism and there is no reasonable expectation of improved attendance.

[18] In Quebec, an employee may take up to 12 weeks of unpaid leave per year in regard to any serious illness or accident suffered by a family member. The leave can be extended to 104 weeks if a minor child of the employee has a serious and potentially fatal illness.
In Saskatchewan, an employee may take up to 12 weeks’ unpaid leave per year in respect of any serious illness or injury suffered by an immediate family member, which may be extended to 16 weeks in certain circumstances. To qualify for leave, an employee must have at least 13 consecutive weeks of service with the employer.

[19] An employee’s absence may be extended to 104 weeks if a child of the employee under the age of 18 has a serious and potentially fatal illness.

[20] In Saskatchewan, an employer is prohibited from dismissing, suspending, laying off, demoting or disciplining an employee because of absence from work if, during the period of absence, the employee is receiving compassionate care benefits, or is serving the waiting period for benefits, under the Employment Insurance Program and the absence, in combination with absences due to the illness or injury of the employee and/or a family member, does not exceed 16 weeks in total in a 52-week period.

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Date Modified:

2012-02-15