Labour & Employment Newsletter
Changing Leaves Are in the Air: What’s in Store for Employers Regarding Employee Leaves of Absence?
Crisp air and shortened days mark the start of changing leaves that colour the landscape across Nova Scotia. With summer vacations in the rear-view, employers must prepare for other changing leaves that will soon show themselves in workplaces across the province. Recent legislative amendments and the introduction of three bills will have an impact on employee entitlements to domestic violence leave, sick leave, and pregnancy and parental leave. These changes will apply whether your workplace is unionized or not. Remember that the Labour Standards Code sets the minimum requirements for all employers, subject to a few exceptions for particular industries and professions.
Domestic Violence Leave
Just before Nova Scotia’s House of Assembly adjourned at the end of the spring sitting, the Government passed Bill 107 to introduce employee entitlements to domestic violence leaves of absence under the Labour Standards Code. While Bill 107 received Royal Assent in April 2018, the amendments are still awaiting proclamation so the legislation is not yet in force. However, it is anticipated that proclamation of the legislation will occur in the near future.
The amendments provide a leave of up to 16 continuous weeks and 10 intermittent or continuous days when an employee or a child of an employee has experienced domestic violence. The leave will allow victims the time to seek medical attention, obtain services from a victim services organization, undergo psychological or other professional counselling, relocate temporarily or permanently, or seek legal or law enforcement assistance.
A general confidentiality provision would require an employer to keep all employee information regarding the leave private.
Bill 107 provides that the leave would be unpaid. Currently, four provinces have proposed legislative amendments to provide paid leave for domestic violence, while three other provinces already have legislation in force to provide for paid leave.
In late September 2018, Nova Scotia’s NDP party introduced a new bill to provide that the first five days of domestic violence leave would be paid leave. The Department of Labour and Advanced Education is consulting with stakeholders on whether paid leave should be included in the domestic violence leave entitlement.
Employers should monitor the progress of Bill 107 as it awaits proclamation. Regardless of whether the leave is unpaid or paid, employers will need to adjust their human resources planning to ensure they are ready for the new category of leaves of absence when it becomes available to employees.
Currently, the Labour Standards Code provides up to three unpaid sick leave days for employees. Employers may offer more than this or choose to provide paid sick days to employees, however, that is at the employer’s discretion.
In late September 2018, the Nova Scotia NDP introduced a bill proposing amendments to the Code that would provide six paid days per year to employees, and also eliminate the employer’s right to require a note from a medical practitioner to evidence the employee’s requirement for the leave. Eliminating the requirement to provide a medical note has received public support from Doctors Nova Scotia, who have been vocal on the administrative burden that such notes place on the healthcare system.
To date, there is no indication if the current Liberal government will support the NDP’s proposed legislative amendment. However, the proposal appears to follow suit with legislative changes that came into force in Ontario earlier this year. In January 2018, Ontario’s Bill 148 came into force under a Liberal government. Bill 148 eliminated the right of employers to ask for a medical note from employees requesting sick leave. It also increased the number of sick leave days, known as personal emergency leave, to 10 days per year, two of which must be paid days.
Pregnancy and Parental Leave
On September 13, 2018, the Nova Scotia Government introduced Bill 29 to amend the Labour Standards Code provisions for pregnancy and parental leave. Bill 29 is currently before the Committee of the Whole House, and the changes are anticipated to come into force in the coming months.
The amendments propose increasing pregnancy and parental leave to reflect the Federal Government’s recent changes to Employment Insurance (“EI”) entitlements to those parents wishing to take pregnancy and/or parental leave. In December 2017, changes to the EI program extended EI coverage for pregnancy and parental leave from a combined 50 weeks to 76 weeks. Many employers in Nova Scotia are now receiving requests from employees who wish to take 18 months of pregnancy and parental leave instead of the traditional 12 months of combined leave. Most provinces, with the exception of Prince Edward Island and Saskatchewan, have already enacted changes to their employment standards legislation to provide maximum combined leave to match the federal changes to the EI program.
Bill 29 proposes to reduce pregnancy leave from 17 to 16 weeks, which would reflect the reduction in the EI waiting period from two weeks to one week and increase parental leave from 52 to 77 weeks. The combined maximum leave is proposed to increase from 52 to 77 weeks.
Employers need to be mindful of these changes for several reasons. Combined pregnancy and parental leave of a longer duration will impact how employers plan for and hire temporary staff to cover employees who are on pregnancy or parental leave. Workplace policies and documents related to recruitment and job postings should be amended as required to reflect these staffing needs.
Also, many employers provide what are known as “top-up benefits”. These amounts are supplemental payments provided to employees who take pregnancy and/or parental leave so that the employee’s pay is “topped up” by a percentage and for a duration as determined by the employer. The top-up amounts are not deducted from an employee’s EI benefits provided that certain requirements are met. Specifically, when the payment is added to the employee’s weekly EI benefits, the combined amount must not exceed the employee’s normal weekly earnings from employment. Also, the payment must not be used to reduce other accumulated employment benefits such as banked sick leave or vacation leave credits.
The tricky part about top-up benefits for employers is that many of the policies regarding top-up benefits would have been drafted before the amendments to the EI program and proposed changes to the legislation in Nova Scotia. Employers may have policies in place that would require them to provide an overall financial top-up amount that is greater than what they anticipated, or result in a greater benefit to parents who take 18 months versus those who take the traditional 12 months combined leave.
Employers who want to modernize their policies and provide certainty to their financial exposure may want to consider putting a cap on the number of weeks they will provide a top-up payment, or lowering the percentage or amount of top-up benefits paid each week. Of course, if the top-up is contained in a collective agreement, any changes would have to be negotiated with the Union.
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