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

II. Supporting Working Families

5. Time off for Nursing Mothers and Employees with Medical Needs

Commission Recommendations:

• Part III should provide for short breaks during working hours to afford nursing employees reasonable time off, without pay, to breastfeed a child and/or express milk on the work site. Similar breaks should also be available to employees who need them to inject medications or for similar medical purposes. Such breaks should be subject to operational considerations, but should not be unreasonably denied.
• Employees should be entitled to time without pay for personal medical appointments. Employees should give reasonable notice to the employer and take reasonable steps to minimize the duration of their absence. (R. 7.59-7.60)

Work breaks for nursing or medical reasons

The Commission recommended that nursing mothers and employees with medical issues be given the right to take the reasonable time off to address biological or medical concerns whenever necessary. If implemented, this recommendation could help employers meet the duty to accommodate employees who have particular needs due to family status, gender and/or disability. This duty arises from the Canadian Human Rights Act.

The Commission’s recommendation is not unprecedented. A number of jurisdictions, including Ireland and 12 U.S. states, have enacted legislation requiring employers to provide employees with a reasonable amount of break time for nursing mothers to express milk. The UK requires employers to provide nursing mothers with a place to rest and suitable rest periods. As well, there are a number of sources that have emphasized the considerable health benefits of breastfeeding for both mother and child. This includes the latest ILO Maternity Protection Convention (C183, not yet ratified by Canada) which calls for nursing breaks at work.

It is also recognized in Canadian law that employees may need short breaks for health reasons such as injecting medications. In several provinces, employees are entitled to take a meal break at any time if it is for medical reasons.

On the other hand, there may be circumstances in which it is not reasonable to have work breaks of this nature. The work site might be unsuitable, or there may be operational reasons that would make it difficult to accommodate such breaks.

A related issue is whether pregnant and breastfeeding women who work under federal jurisdiction should be entitled to the same income support that is provided in the province or territory where they reside. Many employees are only able to take full advantage of their entitlements under Part III where there is an income support program available to assist them under another statute. In Quebec, some employees, including pregnant and nursing women, receive benefits from the Commission de la santé et de la sécurité du travail. Quebec residents who work under federal jurisdiction do not enjoy this coverage. To ensure that federally-regulated workers receive the same level of benefits as those provided to their provincially or territorially-regulated counterparts, employers could be required under Part III to subscribe to a plan that provides employees with income support during a leave of absence from work that is equivalent to that payable under the applicable provincial or territorial income support legislation. There is currently a similar requirement under Part III with respect to workers’ compensation payments.

Time off for medical appointments

Another of the Commission’s recommendations was to amend Part III to ensure that employees have the right to unpaid time off for medical appointments. Under the Commission’s proposal, employees would only be entitled to the time off if they provided reasonable notice to their employer and took reasonable steps to minimize the duration of their absence. Although many employers undoubtedly allow employees to leave work from time to time to attend medical appointments, there may be some that do not. Medical appointments, particularly those with specialists, often can only be scheduled during regular working hours. It seems unfair that some employees might have to risk discipline or job loss if they want to take time off to visit a doctor.

On the other hand, employers may be concerned that a statutory right to time off for medical appointments could be abused. One option might be to limit the total duration of time off that can be taken per year for this purpose. For instance, under Nova Scotia's Labour Standards Code, an employee is entitled to three days of unpaid leave per year for medical, dental or other similar appointments during working hours.[21] Employers could also be given the right to request a medical certificate in order to verify the appointment.

For discussion:

• Should employers have to provide employees with reasonable, unpaid time off during the day in order to breastfeed, express milk, or to inject medications? If so, what should be considered “reasonable” time off? Should employers also be required to provide a private and/or clean area for employees who are breastfeeding or injecting medications?
• Are there any operational considerations or other reasons that would prevent an employee from taking a break to breastfeed or to inject medications?
• Should employers be required to subscribe to a plan that provides pregnant or nursing women who are taking a leave of absence under Part III with wage replacement equivalent to that provided for under the applicable income support legislation in the province or territory where the employees reside?
• Should employees be entitled to take unpaid time off for personal medical appointments, provided that they give reasonable notice to the employer and take reasonable steps to minimize the duration of their absence? If so, should there be any other conditions or restrictions on this right?

6. Right to Request Flexible Work and the Duty to Consider

Commission Recommendations:

• Employees should be provided a right to request, in writing, that their employer decrease or increase their hours of work, give them a more flexible schedule or alter the location of their work. The employer should be required to give the employee an opportunity to discuss the issue and provide reasons in writing if the request is refused in whole or in part. There should be no appeal of an employer’s decision on the merits, although an employee could file a complaint if the employer has failed to adhere to the procedure.
• The employer’s obligation to respond to a request should be limited to one request per calendar year per employee. Employees should be entitled to invoke these provisions after completing one year of service with the employer. (R. 7.44-7.45)

This proposal is modelled on UK regulations that provide for the right to request flexible work. Under these regulations, the employer has a duty to consider the request, but has broad discretion to decline it.

In order to make the request, the employee must have been continuously employed for a period of 26 weeks. The employee has a right to request changes in his or her work schedule in order to take care of a spouse, a relative or a child under his or her responsibility.[22] The employee may request changes in hours, times or places he or she is required to work. For example, he or she may ask to work part-time, to compress workweek hours over fewer days or to work from home. The employer must consider the request, but has the discretion to refuse it for business reasons, such as the burden of additional costs, an inability to recruit additional staff, or detrimental impact on quality or performance.

The request must meet the following procedural requirements. An employee must make a written application to the employer specifying the nature of the changes proposed, explaining how these changes might affect the employer’s business and how that could be accommodated. Within 28 days of the application being made, the employer must hold a meeting with the employee to discuss the request. Fourteen days after the meeting, the employer must inform the employee in writing whether or not the application has been accepted. The employee may ask the employer to reconsider the decision, in which case the parties must have another meeting and the employer must inform the employee in writing of the outcome.

Failure of the employer to follow this procedure entitles the employee to make a complaint before an employment tribunal. If successful, the tribunal can order the employer to reconsider the application and to pay compensation to the employee of up to eight weeks’ pay.

Despite the fact that there is no obligation for employers to grant the request presented by workers, it seems that this mechanism has prompted employers to be more willing to accept request for accommodation. According to the numbers provided by Patricia Hewitt, who was from 2001 to 2005 UK Secretary of State for Trade & Industry, approximately one million requests were presented by employees during the first year of the legislation and about 80 % of such requests were accepted by employers. An independent case study (Croucher and Kellinher (2005))[23] has also concluded that the UK legislation has in fact prompted employers to be more receptive to employees’ need and to accommodate them. In some cases, employers were willing to re-examine their HR policies or go beyond the minimal requirements of the legislation. In other cases, employers extended the right to employees who were ineligible to present requests under the law.

Some would argue that employers may feel pressured to accept these types of requests and that a “right to request” could have the potential to create conflict in the workplace. However, Part III could make it clear that a “right to request” does not impose any additional legal obligation on employers to accede to employees’ demands for accommodation. This could also be set out in informational documents for employees prepared by the Labour Program.

The Commission’s proposal could increase administrative burdens on the employer. This is because the employer would have to meet with employees who submit requests and, if the request is refused, provide written reasons for refusal. Employers would, of course, also have to keep records of all individualized working time arrangements. However, limiting an employee’s right to request flexibility to one request per calendar year could help lessen the administrative burden.

For discussion:

• Should employees be provided with the right to request flexible hours or a change in location, which the employer would have a duty to consider? If so, should employees have to complete a minimum amount of service with the employer before making such a request? Should a right to request be available for any reason? Or should it be available only where there is a special need for accommodation or in other specific circumstances (e.g., where the employee has family responsibilities)? Should employees be limited to one request per year, or should there be a different time interval between allowable requests?
• Should the employee be entitled to a meeting with the employer and to reasons in writing for the decision? Should the employee be allowed to ask the employer to reconsider its decision if the request is declined? What other procedural steps, if any, might be appropriate?
• How should this type of provision be enforced? What consequences, if any, should employers face if they fail to adhere to the procedure?

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[21] This leave can also be used for the sickness of a child, parent or other family member.

[22] An employee is eligible to make such request if he or she has to take care:

1. of a child under six or a disabled child under 18 if he or she is responsible for the child as a parent, special guardian, foster parent, private foster carer or as a holder of a residence order; or is the spouse, partner or civil partner of such a carer.
2. of a spouse, partner, civil partner, relative or a person who lives at the same address.

[23] Croucher, R. and C. Kellinher, “The Right to Request Flexible Working in Britain: The Law and Organization Realities”, International Journal of Comparative Labour Law and Industrial Relations 21 (3), 2005.

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Date Modified:

2012-02-15