A lot has happened since the federal budget bills containing amendments to modernize the Canada Labour Code (the Code) received royal assent back in late 2018 and early 2019. Since then, many changes to federal labour standards have come into force, new regulations have been drafted and several rounds of consultations with stakeholders have taken place.
Amidst all this preparation came COVID-19, which caused a public health crisis, layoffs, shutdowns and delays in legislative and regulatory planning. As things gradually get back on track, this week the federal Labour Program has released the following important updates for federally regulated employers.
Specifically, in this publication, we provide an update on:
Federal temporary layoff period extended
On June 22, the federal government announced that it will be extending the time periods for temporary layoffs under section 30 of the Canada Labour Standards Regulations (the Regulations) to provide employers with more time to recall laid-off employees.
Normally, under the Regulations, employees who were laid off in federally regulated workplaces were not deemed to have been terminated from their employment if the lay-off was for three months or less. This means that in some cases, employees who were laid off in March or April 2020, may see their employment deemed terminated as early as June or July 2020, depending on the circumstances of every employee. Other employees may be in a similar situation within the next few months where the employer has provided a recall date within six months.
To remedy this issue, and to support employers facing economic hardship as a result of the pandemic, the Regulations have now been amended, effective as of June 22, to temporarily extend the time period for a temporary layoff by up to six months:
- For employees laid off prior to March 31, the time period is extended by six months or to December 30, 2020, whichever occurs first.
- For employees laid off between March 31 and September 30, the time period is extended until December 30, 2020, unless a later recall date is provided in a written notice at the time of the layoff.
If an employee’s employment is eventually terminated by the employer, the employer is still required to pay the employee eligible termination pay, severance pay and/or vacation pay in accordance with Code provisions. In that case, the time that an employee is laid off will continue to count towards his or her continuity of employment and will be factored into the calculations for termination pay and severance pay.
It should be noted that the amendments to the Regulations do not apply to:
- employees whose employment had already been terminated prior to the coming into force of the amendments; and
- employees who are covered by a collective agreement that contains recall rights.
Further, employers should take note that these amendments are temporary and will be repealed on September 30, 2020, after which the time periods for deemed terminations following a lay-off will revert to the original provisions at section 30 of the Regulations.
Harassment and violence provisions of the Code in force
On June 22, by Order-in-Council, the government announced that the new workplace violence and harassment provisions under the Code will come into force on January 1, 2021. As detailed in our previous publication, the Code was amended to include important new health and safety provisions to Part II of Code in order to address harassment and violence in the workplace. In particular, the amendments include a broad definition of harassment that includes physical and psychological violence. The amendments also introduce requirements on employers to prevent and protect employees from harassment in the workplace and respond promptly and in a prescribed manner to any such occurrences.
Final version of harassment and violence regulations published
Pursuant to Bill C-65, last spring the government pre-published draft Work Place Harassment and Violence Regulations (the HV Regulations) for comment by stakeholders. Recently, on June 23, the final version of the HV Regulations was published in the Canada Gazette Part II. They will come into force along with the accompanying Code provisions on January 1, 2021.
The HV Regulations replace Part XX of the Canada Occupational Health and Safety Regulations, as well as certain related provisions in the Maritime Occupational Health and Safety Regulations and the On Board Trains Occupational Safety and Health Regulations.
The final version of the HV Regulations outlines specific standards that employers must follow, including the components that must be included in their harassment and violence prevention policy. We have detailed some of these requirements in our previous publication. Notably, under these HV Regulations employers must:
- Implement the resolution process outlined in the HV Regulations, which includes notice requirements, response times, negotiated resolutions, conditions for conciliation, and steps to follow in any investigation.
- Keep records and internal reports on all workplace harassment and violence-related requirements (e.g., policy, assessment, reviews/updates) and occurrences (e.g., investigation reports).
- Submit annual reports of aggregated data to the government and report any occurrence that results in the death of an employee within 24 hours.
New 2020-2022 regulatory plan released
In accordance with Treasury Board Secretariat’s Cabinet Directive on Regulations, the federal government’s Labour Program has published a Forward Regulatory Plan to promote transparency in the regulatory process for all upcoming initiatives between now and 2022.
These regulatory initiatives were developed following consultations with stakeholders. Some proposed regulations are approaching publication in the Canada Gazette, Part I, offering another opportunity for stakeholders and the general public to provide feedback. Some updates on the status of key regulations are outlined below:
Exemptions and/or Modification Regulations Regarding New Hours of Work Provisions under the Canada Labour Code – Modernizing Federal Labour Standards:
|Description of Regulation
||Update on Timeline
Amendments to hours of work rules in the Code came into force on September 1, 2019. The amendments include new regulatory authorities to create exemptions and/or modifications for certain classes of employees from hours of work rules where they would be unduly prejudicial to the interests of employees or seriously detrimental to the operation of the industrial establishment.
For more information on these regulations please see our previous publication here.
The regulations will be developed in two phases, as follows:
1. Marine shipping, longshoring and marine pilotage sectors, the road transportation sector and the grain-handling sector: these regulations are expected to be pre-published in Part I of the Canada Gazette, for the fall of 2020 for public comment.
2. Other federally regulated sectors, including air transportation, broadcasting and communications, and rail transportation: these regulations are expected to be pre-published in Part I of the Canada Gazette, the date of which has yet to be determined.
Standards for Work-Integrated Learning Activities Regulations (Student Internships):
|Description of Regulation
||Update on Timeline
The proposed amendments clarify how federal labour standards under Part III of the Code apply to internships within federally regulated workplaces. Individuals undertaking an internship will be covered by Part III as though they were employees, unless the internship is to fulfill the requirements of an educational program. The regulations will:
- establish the labour standards protections that will apply to student interns
- define the educational institutions that are included, and
- clarify other administrative issues, such as an employer’s relevant record-keeping responsibilities.
The proposed regulations were pre-published in the Canada Gazette, Part I on June 8, 2019, for a 30 day comment period.
It is anticipated that the final regulations will be published in Part II of the Canada Gazette in the summer of 2020, with coming into force planned for late summer 2020.
Regulations under Part IV of the Canada Labour Code – Administrative Monetary Penalties Regulations:
|Description of Regulation
||Update on Timeline
The new Part IV to the Code will promote compliance with occupational health and safety and labour standards requirements and will authorize the publication of names of employers that have committed a violation.
- designate violations and determine associated penalties
- provide methods of payment, the manner and grounds to request reviews of notices of violation, and
- provide additional information to be published regarding the violation
For more information please see our previous publication here.
Draft regulations were pre-published in Canada Gazette, Part I, in the summer of 2019.
Publication in Canada Gazette, Part II, is expected for the fall of 2020. Coming into force is anticipated for the winter of 2021.
Given current circumstances related to COVID-19, there is uncertainty regarding publication and coming-into-force dates. For this reason, it is expected that 2020 to 2022 Forward Regulatory Plan will be re-issued when operations return to normal.
Needless to say, employers in the federal sphere will be busy. Most immediately, federally regulated employers weathering the COVID-19 storm should carefully consider how extensions to the permissible layoff period under the Code will affect their workplaces.
Moreover, the impact and importance of the coming into force of harassment and violence provisions under the Code cannot be understated. Indeed, employers would be wise to seriously consider how these provisions may impact policies, practices, training and interactions in the workplace.
With these important updates, the federal Labour Program has indeed signaled to federally regulated employers that they are alive to the changing climate in the federal sphere and are gearing up to continue to deal with critical issues and make important progress regarding the Code’s modernization. In short, COVID-19 or not, changes are on the horizon for federally regulated employers.