Manitoba Extending Parental Leave and Introducing Critical Illness Leave

On March 20, 2018, the Manitoba government introduced legislation that would amend the Employment Standards Code to, among other things, extend provisions for parental leave and leave for individuals to care for a critically ill adult family member.

The changes to the Employment Standards Code include:

1. Statutory leaves:

The statutory leave amendments allow Manitobans to take advantage of recent changes to employment insurance benefits (extended parental EI benefits and family caregiver EI benefits) available under federal legislation.

• Extending parental leave from 37 weeks to 63 weeks to care for a new child in the family.
• Establishing critical illness leave that allows:
  • An employee who has been employed by the same employer for at least 30 days to be entitled to an unpaid leave of absence from employment of up to 37 weeks to provide care or support to a critically ill child who is a family member of the employee.
  • An employee who has been employed by the same employer for at least 90 days to be entitled to an unpaid leave of absence from employment of up to 17 weeks to provide care or support to a critically ill adult who is a family member of the employee.

For an employee to be eligible for leave, a physician must issue a certificate:

1. stating that the child or adult is a critically ill child or a critically ill adult and requires the care or support of the employee; and
2. setting out the period during which the child or adult requires that care or support.

Unless the employee and employer agree otherwise, an employee may end a critical illness leave earlier than the expiry of 37 weeks in the case of a critically ill child, and 17 weeks in the case of a critically ill adult by giving the employer written notice at least one pay period before the employee wishes to end the leave. A leave must end no later than 52 weeks after the day the first period of leave began.

A critical illness leave may be taken in one or more periods, but no period may be less than one week’s duration.

If a child or adult in respect of whom an employee has taken critical illness leave remains critically ill after the 52-week period expires, the employee is entitled to take another leave and the requirements apply to the new leave.

2. Youth employment

Changes to youth employment is to bring the working age of young people in Manitoba, in line with the United Nations’ International Labour Organization Minimum Age Convention 138, which came into force in Canada in June 2017 with unanimous support from all provinces and territories.

• Raising the minimum age for employment from 12 to 13. Therefore, no person can employ a child under the age of 13 years and a parent cannot allow a child under the age of 13 years to be employed.
• Eliminating the requirement for employers to obtain a permit before employing someone under the age of 16, and instead requiring employers to ensure a young person between the ages of 13 and 16 has a certificate verifying they have completed an approved work readiness course online and has a signed consent form from the young person’s parent to the employer.

“Parent” of a child includes a guardian of the child or other person who has care, custody or control of the child.

“Young person” means a person 13 years of age or older but less than 18 years old.

A person under the age of 16 years cannot work between 11:00 p.m. and 6:00 a.m. or for more than 20 hours during a week of school.

Subject to the regulations, no employer can require or allow a young person under the age of 18 years to work alone between 11:00 p.m. and 6:00 a.m. and no employer can require or allow a young person under the age of 18 years to work in a prescribed industry or occupation.

If an employee under the age of 13 years is employed under an approved permit when this Bill comes into force, the employee under the age of 13 can continue employment, and the child need not complete a work readiness course or provide a work readiness certificate unless the child becomes employed by another employer after turning 13 years of age.

If a young person under the age of 16 years is employed by an employer under the authority of a permit issued by the director when this Bill comes into force, the young person need not complete a work readiness course or provide a work readiness certificate unless they become employed by another employer.

3. Averaging agreement

The Bill introduces a new process to allow an employer and an employee or group of employees to enter into an agreement on averaging hours of work without requiring approval from the director of employment standards. The agreement applies to every employee in a group, whether or not the employee signed the agreement or was employed by the employer when the agreement was entered into. However, the agreement will not apply to employees who regularly work less than 30 hours per week.

The employer and employee can enter into an agreement determining an employee’s standard hours of work for a specified period if, under the agreement,

1. the employee’s standard hours of work per day do not exceed 12 hours;
2. the employee’s standard hours of work per week do not exceed 60 hours; and
3. the employee’s standard hours of work for the specified period are as determined by the following formula:

Standard hours = W × H

In this formula,

W is the number of weeks in the specified period;

H is 40 or, if the average number of regular hours of work per week during the specified period as authorized by the agreement is less than 40, that lesser number.

In addition, the agreement to average hours of work must be in writing and must:

• be made at least one week before the start date of the agreement;
• specify the employee or group of employees to whom the agreement applies;
• be signed by the employer and by the employee or, in the case of a group of employees, by at least 75 percent of the employees affected by the agreement;
• specify the start date and end date of the agreement, which may be no more than three years in duration;
• specify the period over which the hours will be worked, which may not exceed 12 weeks;
• specify the work schedule which reflects the daily and weekly hours; and
• be posted at the employer’s premises where it can be seen by the affected employees.

The agreement can be renegotiated at any time.

The director may, by written notice to the employer at any time, terminate an agreement or prohibit an employer from entering into an agreement if:

• the agreement adversely affects or will adversely affect the safety, health or welfare of the public or of the employees to whom the agreement applies; or
• there is a relevant history of non-compliance by the employer with this Code.

4. Complaints

• Authorizing the director of employment standards to refuse frivolous or vexatious complaints.
• Clarifying that unionized employees would no longer have the ability to file a complaint with the director of employment standards since collective agreements include grievance processes for handling disputes between employers and employees about wages or other terms of employment.

Coming into force

The coming into force date for changes to protected leaves is set at royal assent, while the remaining proposed changes would take effect upon proclamation.

If enacted, employers will need to review their HR policies and practices to ensure compliance by the coming into force dates.