New rights for employees with respect to leave and authorized absences

August 29th, 2018

Bill 176, An Act to amend the Act respecting labour standards and other legislative provisions mainly to facilitate family-work balance (the "Act"), which was adopted by the National Assemblye on June 12 2018, has introduced some major changes to the labour standards, in particular several amendments with respect to leaves and authorized absences.

SICK LEAVE

One of these amendments consists in the elimination of the requirement for the employee to have accumulated at least 3 months of uninterrupted service with the employer to benefit from a sick leave of up to 26 weeks over a 12 months period; hence the possibility that the employer might have to face recourse for prohibited practice in the event of the employee’s dismissal during their probation period, as set forth by the Act respecting labour standards.

Likewise, the Act entitles the employee to have the first 2 days of sick leave paid, it being specified, however, that this right is limited to one absence per year. Even so, this right is subject to the employee having accrued 3 months of continued service. Note that this right to 2 days' paid sick leave applies neither to senior managerial personnel nor to employees governed by the Act respecting labour relations, vocational training and workforce management in the construction industry.

ANNUAL LEAVE : A THIRD WEEK OF PAID VACATION AFTER 3 YEARS OF CONTINUED SERVICE

Another notable amendment: until the adoption of Bill 176, the employee needed to accrue 5 years of continued service before being able to claim a third week of paid vacation (for a complete year of work). This threshold has been lowered to 3 years.

AUTHORIZED ABSENCES TO FULFILL FAMILY OR PARENTAL DUTIES

The Act also modifies the employee’s rights with respect to absences to fulfill family or parental responsibilities. As of today, section 79.7, paragraph 1 of the Act respecting labour standards provides as follows: “An employee may be absent from work, without pay, for 10 days per year to fulfil obligations relating to the care, health or education of the employee’s child or the child of the employee’s spouse, or because of the state of health of the employee’s spouse, father, mother, brother, sister or one of the employee’s grandparents.”

The Act broadened the definition of “relative” to include relatives of the employee’s spouse as well as their spouses, children and children’s spouses, and provides that certain days of absence may also be taken for the benefit of persons, other than relatives, for whom an employee acts as a “caregiver” (as evidenced by a professional working in the health and social services sector and governed by the Code des professions).

The legislator also codified the principle developed by case law according to which the employer can request a document from the employee certifying the reasons for this absence, if the circumstances justify such request, notably in light of the duration of the employee’s absence.

In this context, it is also worth mentioning that the employee who has accrued 3 months of continued service with his employer is entitled to remuneration for the first 2 days of absence per year. Until now, the employee was not entitled to any remuneration for this absence. Again, it must be emphasized this right applies neither to senior managerial personnel nor to employees governed by the Act respecting labour relations, vocational training and workforce management in the construction industry.

Furthermore, the duration of an authorized absence because of a serious illness or accident (non life-threatening) of an employee’s relative (as redefined by the Act) was increased by the Act from 12 to 16 weeks over a period of 12 months. Another change: where the sick or injured relative is a minor child, the period of authorized absence is 36 weeks maximum over the same period of time.

Finally, in the event of a serious and potentially fatal illness, attested by a medical certificate, the employee may be absent from work for a maximum period of 27 weeks (and a maximum of 104 weeks if the person is a minor child, but this authorization already existed prior to the adoption of the Act).

The same rules apply where the employee must stay with a person for whom he/she acts as a caregiver.

ABSENCES DUE TO THE DISAPPEARANCE OF A CHILD, DEATH OR FUNERAL

In the event of the disappearance of the employee’s minor child, the employee is henceforth authorized to be absent from work, without pay, for up to 104 weeks (versus 52 before) (section 79.10 of the Act respecting labour standards).

The same duration applies in the event of death of the employee’s minor child (section 79.10.1 of the Act respecting labour standards), or following the death of the employee’s spouse, father, mother or child of full age, but only if it is due to suicide or the death occurs during, or results directly from, a criminal act (save where the deceased was a party to or contributed to the act through willful misconduct) (sections 79.11 to 79.13 of the Act respecting labour standards).

Finally, an employee may be absent from work for 2 days (versus 1 day before), with full pay, in the event of the death or funeral of his spouse, child or spouse’s child, his father, mother, brother or sister. The employee may take an additional unpaid leave of 3 days (versus 4 days before) on the same occasion.

ABSENCE FOR BIRTH, ADOPTION OR TERMINATION PREGNANCY

Pursuant to section 81.1 of the Act respecting labour standards, “an employee may be absent from work for five days at the birth of their child, the adoption of a child or where there is a termination of pregnancy in or after the twentieth week of pregnancy.

Until now, the first two days of absence were only paid if the employee had accrued 60 days of continued service. This minimum service requirement was eliminated by the Act.

COMING INTO FORCE OF THESE AMENDMENTS

While the majority of the changes mentioned in the present article only come into force on January 1, 2019, certain amendments specifically with regard to the increased duration of certain authorized absences, already apply.

BCF Business Law's labour and employment team is available to answer your questions.