On December 1, 2022, federally regulated private sector employees will gain 10 days of sick leave per year with amendments to Part III of the Canada Labour Code. Here’s what you need to know.

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Since the beginning of the pandemic, employers have struggled to navigate perpetually changing Covid policies and procedures. Further, many employees simply cannot afford to stay home after testing positive for Covid, but are legally obligated to due to mandatory isolation periods. In response to these issues, governments across the country are implementing variations of paid sick day provisions.

The Government of Canada’s introduction of 10 paid sick days for federally regulated private sector employees will impact approximately 6% of Canadian workers employed by 18,500 employers (article here). On December 1, 2022, the new paid medical leave provisions will come into force. An Act to amend the Criminal Code and the Canada Labour Code (BillC-3), which received Royal Assent in December 2021, amends Part III, Division XIII (Medical Leave)of the Canada Labour Code, RSC, 1985, c L-2 (“the Code”).

Additionally, there are proposed changes to the Canada Labour Standards Regulations, CRC, c 986 (the “Regulations”) which will provide detailed guidance on the operation of the new provisions. Currently, they are slated to come into force at the same time as the changes to the Code.

How It Will Work

Employees who are newly hired will not be entitled to the full ten sick days immediately. Once an employee has been employed for 30 continuous days, they will be eligible for three paid sick days. From thereon, employees will gain one additional sick day per month work, with a maximum of ten paid sick days per year. Additionally

[a]nydays of medical leave with pay that an employee does not take in a calendar year will carry forward to the next calendar year and each day carried over reduces the number of days that can be earned in that next year by one [Canada Gazette]

If an employer uses a different year, other than a calendar year, for calculating vacation pay, the Government of Canada currently directs these employers to “use that same year for the purposes of the paid medical leave provisions.”

Employees who take sick days will be paid their ‘regular rate of wages’. If an employee does not have a standard set of working hours each day, section 17 of the Regulations states that their regular rate of wages would be calculated as follows:

(a)  the average daily earnings of an employee (other than overtime pay) for the 20 days the employee worked immediately before the first day of the period of paid leave; or

(b)  an amount calculated by a method agreed on under or pursuant to a collective agreement that is binding on the employer and the employee.

The Regulations will mandate employers to keep records of the following:

1. The dates of commencement and termination of the leave;
2. The year of employment in respect of which the leave was earned;
3. The number of days of leave carried over from a previous year;
4. A copy of any written request for a medical certificate made by an employer; and
5. A copy of any medical certificate submitted by an employee

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Additionally, employers may instruct employees to take sick days “in periods of not less than one day” and may ask that employees provide a medical certificate if they go on sick leave for at least 5 consecutive days.

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Who is a Federally Regulated Private Sector Employee?

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The 10-day sick leave applies to workers employed at Federal Crown Corporations and Federally regulated private sector employees. This includes the following:

1. International and interprovincial transportation by land and sea, including railways, shipping, trucking and bus operations;
2. Airports and airlines;
3. Port operations;
4. Telecommunications and broadcasting;
5. Banks;
6. Industries declared by Parliament to be for the general advantage of Canada or for the advantage of two or more provinces, such as grain handling and uranium mining; and
7. First Nations Band Councils

Employees who are part of the Federally regulated public sector will not be eligible for the 10-day sick leave (such as the Federal Public Service and Parliament).

Part II (occupational health & safety) and Part III (standard hours, wages, vacations &holidays) of the Canada Labour Code only apply to the employee/employer relationship, and therefore does not apply to independent contractors. Accordingly, independent contractors will not be eligible for 10 days of paid sick leave either.

If you are unsure whether these changes impact your workplace, or if you have any questions about this topic, please do not hesitate to get in touch with our Employment & Labour Group.

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Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter please contact one of our group members. We communicate all these updates to our clients and readers on our Employer Resources Portal and through monthly Newsletters.