10 Days Paid Sick Leave for Federally Regulated Employees

In response to employees increasingly needing time off work due to COVID-19 and other illnesses, the government has recently amended the Canada Labour Code to grant employees of private, federally regulated employers 10 days of paid sick leave. This memorandum is intended to provide information on the legislative changes to paid sick leave requirements and their corresponding implications on business operations that can be used ‘at a glance’ to inform yourself and your business. The following article does not apply to provincially regulated industries/employers.

As this is not client-specific, this document is merely informational and not legal advice. It is intended to serve only as a guideline for how to allocate and distribute paid sick leave to employees. We encourage you to contact our office and seek specific legal advice prior to implementing any of these, or other, measures.

Paid Sick Leave Generally

On December 17, 2021, An Act to amend the Criminal Code and the Canada Labour Code, otherwise known as Bill C-3, received royal assent. Effective December 1, 2022, Bill C-3 alters the paid job-protected leave provisions of Canada Labour Code to provide employees of a private, federally regulated employer 10 days of paid sick leave. As of the time of writing all private, federally regulated employers are impacted by the introduction of paid sick leave, including small and medium-size businesses of less than 100 employees.

Employees may use their sick leave for their personal illness or injury, organ or tissue donation, medical appointments during working hours or if they are required to quarantine.

Federally Regulated Employers

The amendments made in Bill C-3 apply only to private, federally regulated employers. This includes employers with business in:

• Interprovincial air, rail, road and marine transportation;
• Banking;
• Grain elevators, feed and seed mills, feed warehouses and grain-seed cleaning plants;
• First Nations band counsel and Indigenous self-governments;
• Federal Crown Corporations;
• Post services, marine shipping, ferries, tunnels, canals, bridges and pipelines (oil and gas) that cross international or provincial borders;
• Postal and courier services;
• Radio and television broadcasting;
• Telecommunications, such as, telephone, Internet, telegraph and cable systems;
• Uranium mining and processing and atomic energy; or
• Postal and courier services.

Accumulation of Paid Sick Leave Days

Though Bill C-3 ultimately grants employees 10 days paid sick leave per calendar year, the accumulation of the 10 days is staggered throughout the calendar year.

For employees continuously employed for 30 days as of December 31, 2022:

• They will have immediate access to the first three days of paid sick leave.
• On February 1, 2023, they will earn an additional fourth day of paid sick leave, with an additional day earned at the start of each following month until they reach the maximum 10 days of paid sick leave per year.

For employees not continuously employed for 30 days as of December 31, 2022:

• After they complete 30 days of continuous employment, they will have access to the first three days of paid sick leave.
• After 60 days of continuous employment, they will earn one additional paid sick leave at the start of each month until they reach the maximum of 10 days of paid sick leave per year.

Employees are further entitled to carry forward any of their unused paid sick leave days into the next calendar year. For each day carried forward the employee reduces the number of sick days they can earn by one per calendar year. For example, if an employee carries forward two paid sick leave days into the following calendar year, they may only earn eight additional days for an overall total of 10 paid sick leave days.

Implications on Paid Personal Leave Days

In addition to adding paid sick leave days for employees, Bill C-3 also modifies when an employee may use their existing paid personal leave days. Starting December 1, 2022, a federally regulated employee can no longer use their paid personal leave days for treating an illness or injury. Under the Canada Labour Code employees will continue to be entitled to three paid personal leave days for other reasons. Some examples of those reasons are:

• carrying out responsibilities related to the education of any of their family members who are under 18 years of age;
• addressing any urgent matter concerning themselves or their family members; or
• attending their citizenship ceremony under the Citizenship Act.

Next Steps for Employers

With the introduction of 10 days’ paid sick leave there are various concerns employers must account for in their business operations.

First, since the 10 days is a new minimum standard, any provision of an agreement disentitling employees to them (or only giving them, say, 5 sick days per year) could render the entire employment agreement unenforceable. Employers will want to review their current agreements to avoid any issues in that regard. Further, employers that already provide their employees with paid sick leave and do not wish to have the 10 day requirement added to those existing dates will want to review their current employment agreements. These employers must amend their existing agreements to clearly state that their paid sick leave entitlement includes the legislated 10 day minimum and is not in addition to that requirement.

Second, Bill C-3 also permits an employer to request their employees provide a medical certificate from a health care provider if they are absent five consecutive days or longer. This request must be made 15 days after the employee returns to work. While these medical certificates are not mandatory, employers concerned with employee honesty or abuse of paid sick leave may consider them beneficial for record keeping purposes.

Finally, employers must ensure they have allocated sufficient resources for record keeping. According to the regulations in Bill C-3, the employer is required to keep records of all paid sick leaves including: the start and end dates; year of employment in which the leave was earned; the number of days of leave carried over from the previous year; a copy of any written request for a medical certificate made by an employer and a copy of any medical certificate submitted by an employee. These record keeping requirements will require devoted resources.

Conclusion

Effective December 1, 2022 employees of a private, federally regulated employer will become entitled to paid sick leave. Over the course of a calendar year, these employees will become entitled to 10 days of paid sick leave in addition to existing paid personal leave days. Employers should be prepared on how to allocate paid sick leave in advance and how to distribute their resources for the necessary bookkeeping measures. For  more information on these topics or  any other  matters please contact one of the below lawyers from Bryan & Company LLP  or access our Employment Law group here and it would be our pleasure to assist.