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5th Session, 40th Legislature

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Bill 8

THE EMPLOYMENT STANDARDS CODE AMENDMENT ACT (LEAVE FOR VICTIMS OF DOMESTIC VIOLENCE, LEAVE FOR SERIOUS INJURY OR ILLNESS AND EXTENSION OF COMPASSIONATE CARE LEAVE)


  Bilingual version (PDF) Explanatory Note

(Assented to                                         )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. E110 amended

1           The Employment Standards Code is amended by this Act.

2           The heading for Division 9 of Part 2 is replaced with "LEAVES OF ABSENCE".

3           Section 53 is amended by adding "unpaid" before "maternity leave".

4           Subsection 58(1) is amended in the part before clause (a) by adding "unpaid" before "parental leave".

5(1)        Subsection 59.2(2) is amended

(a) by striking out "30 days" and substituting "90 days";

(b) by adding "unpaid" before "compassionate care leave"; and

(c) by striking out "eight weeks" and substituting "28 weeks".

5(2)        The following is added after subsection 59.2(3):

No additional certificate required

59.2(3.1)   For certainty, a leave under this section may be taken after the end of the 26-week period set out in the physician's certificate, and no additional certificate is required.

5(3)        Subsection 59.2(6) is amended

(a) by striking out "eight weeks" and substituting "28 weeks"; and

(b) by striking out "26 weeks" and substituting "52 weeks".

5(4)        Subsection 59.2(8) is amended by striking out "eight weeks" and substituting "28 weeks".

6           Subsections 59.8(3) and 59.9(2) and (3) are amended by striking out "a leave of absence" and substituting "an unpaid leave of absence".

7           The following is added after section 59.9 and before the centred heading "GENERAL":

LONG-TERM LEAVE FOR SERIOUS INJURY OR ILLNESS

Entitlement to leave

59.10(1)    An employee who is seriously injured or ill is entitled to an unpaid leave of absence of up to 17 weeks in any 52-week period, if the employee has been employed by the same employer for at least 90 days.

Physician's certificate

59.10(2)    For an employee to be eligible for leave, a physician must issue a certificate providing evidence reasonable in the circumstances that the employee is expected to be incapable of working for a period of at least two weeks because of a serious injury or illness.

Employee to give notice to employer

59.10(3)    An employee who wishes to take a leave under this section must give the employer as much notice as is reasonable and practicable in the circumstances.

Employee to provide physician's certificate

59.10(4)    The employee must give the employer a copy of the physician's certificate as soon as possible.

Leave must be continuous

59.10(5)    An employee who takes a leave under this section must take the leave in one continuous period, unless the employee and the employer otherwise agree or a collective agreement otherwise provides.

Ending leave early

59.10(6)    Unless the employee and the employer agree otherwise, an employee may end a leave earlier than the expiry of 17 weeks by giving the employer written notice at least 2 weeks before the day he or she wishes to end the leave.

Physician's certificate re employee's fitness to return

59.10(7)    Before the employee returns to work, the employer may require the employee to provide a certificate issued by a physician stating that the employee is fit to return to work.

Meaning of "physician"

59.10(8)    In this section, "physician" means a physician who provides care to the seriously injured or ill employee and who is entitled to practise medicine under the laws of the jurisdiction in which the care is provided.

DOMESTIC VIOLENCE LEAVE

Definition

59.11(1)    In this section, "domestic violence" means domestic violence within the meaning of subsection 2(1.1) of The Domestic Violence and Stalking Act that is caused by an act or omission of a person described in subsection 2(1) of that Act.

Employee entitled to domestic violence leave

59.11(2)    An employee who is a victim of domestic violence and has been employed by the same employer for at least 90 days is entitled to both the following periods of domestic violence leave in each 52-week period:

(a) leave of up to 10 days, which the employee may choose to take intermittently or in one continuous period;

(b) leave of up to 17 weeks to be taken in one continuous period.

Purposes for which domestic violence leave may be taken

59.11(3)    An employee may take a domestic violence leave only for one or more of the following purposes:

(a) to seek medical attention for the employee or the employee's child in respect of a physical or psychological injury or disability caused by the domestic violence;

(b) to obtain services from a victim services organization;

(c) to obtain psychological or other professional counselling;

(d) to relocate temporarily or permanently;

(e) to seek legal or law enforcement assistance, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic violence;

(f) any other prescribed purpose.

Unpaid leave

59.11(4)    Subject to subsection (5), leave taken under this section is unpaid leave.

Paid leave

59.11(5)    Up to 5 days of leave taken under this section in a 52-week period is paid leave, provided that when giving notice under subsection (9) the employee notifies the employer which days, if any, are to be paid leave.

Amount of pay

59.11(6)    The amount an employer must pay an employee for a paid day of leave under subsection (5) must not be less than

(a) the wage the employee would have been paid had the employee worked his or her regular hours of work on the day of leave; or

(b) 5% of the employee's total wages, excluding overtime, for the four-week period immediately preceding the day of leave if

(i) the number of hours worked by the employee in a normal workday varies from day to day, or

(ii) the employee's wage for regular hours of work varies from day to day.

Employer's option re paid leave

59.11(7)    Unless a collective agreement otherwise provides and despite subsection 60(4.2), an employer who provides paid sick leave benefits or other paid leave benefits that are greater than the minimum required by this Code may require that an employee use those benefits for paid days of leave under subsection (5).

Leave for part day

59.11(8)    If an employee takes any part of a day as leave under this section, the employer may count that day as a day of leave for the purpose of this section.

Employee to give notice to employer

59.11(9)    An employee who wishes to take a leave under this section must give the employer as much notice as is reasonable and practicable in the circumstances.

Ending leave early

59.11(10)    Unless the employee and employer agree otherwise, an employee may end a leave under clause (2)(b) earlier than the expiry of 17 weeks by giving the employer written notice at least 2 weeks before the day he or she wishes to end the leave.

Employee must provide verification for paid leave

59.11(11)    An employee who takes a paid leave under this section must provide the employer with reasonable verification of the necessity of the leave that meets the requirements, if any, specified by regulation.

Employer may require verification for unpaid leave

59.11(12)    An employer may require an employee who takes an unpaid leave under this section to provide the employer with reasonable verification of the necessity of the leave that meets the requirements, if any, specified by regulation.

8(1)         Subsection 60(5) is amended by striking out "or" after clause (a), adding "or" at the end of clause (b) and adding the following after clause (b):

(c) that he or she has not been paid for a paid day of leave in accordance with subsection 59.11(6);

8(2)        Subsection 60(6) is amended by striking out "lay-off or termination" and substituting "lay-off, termination or paid day of leave".

8(3)        The following is added after subsection 60(6):

Confidentiality of information

60(7)       An employer must

(a) maintain confidentiality in respect of all matters that come to the employer's knowledge in relation to a leave taken by an employee under this Division; and

(b) not disclose information relating to the leave to any person except

(i) to employees or agents who require the information to carry out their duties,

(ii) as required by law, or

(iii) with the consent of the employee to whom the leave relates.

Restriction on further disclosure

60(8)       A person to whom information is disclosed under clause (7)(b) must not disclose it to any other person unless it is to be used for the purpose for which it was originally disclosed or for a different purpose authorized by clause (7)(b).

9           Subsection 96.1(1) is amended by adding "subsection 59.11(6) or" after "contravened".

10          The following is added after clause 135(1)(l):

(l.1) copies of documents relating to any paid days of leave taken by an employee under subsection 59.11(5), including records of the dates and number of days taken as paid leave, and the amount paid to the employee for each paid day of leave;

11           Clause 139(1)(d) is replaced with the following:

(d) fails to comply with subsection 60(1) (termination), (2) (reinstatement), (7) (confidentiality) or (8) (further disclosure);

12          The following is added after clause 144(1)(o.2.1):

(o.2.2) prescribing other purposes under subsection 59.11(3) (domestic violence leave);

(o.2.3) governing the verification that an employee is required to provide to an employer under subsection 59.11(11) or (12), including the types of certificates or other documentation that are acceptable, what information they must contain and when they must be provided;

Transition — compassionate care leave

13(1)       If, on the day this section comes into force, an employee is on compassionate care leave, as provided in subsection 59.2(2) of the former Act, or has given his or her employer notice under subsection 59.2(4) of the former Act, the compassionate care leave that the employee is entitled to is increased from a total of 8 weeks to a total of 28 weeks.

Meaning of "former Act"

13(2)       In subsection (1), "former Act" means The Employment Standards Code, as that Act read immediately before the coming into force of this section.

Coming into force — April 1, 2016

14(1)       Subject to subsection (2), this Act comes into force on April 1, 2016.

Coming into force — proclamation

14(2)       The following provisions come into force on a day to be fixed by proclamation:

(a) sections 2 to 4, 6 and 8 to 12;

(b) clause 5(1)(b); and

(c) section 7 insofar as it enacts section 59.11.

Explanatory Note

This Bill amends The Employment Standards Code to enable an employee who is a victim of domestic violence to take up to 10 days of leave, either intermittently or in a continuous period, as well as a continuous leave period of up to 17 weeks. Up to 5 days are to be paid leave. Domestic violence leave must be for specified purposes relating to the domestic violence. For example, the leave is required to seek medical attention or to seek legal or law enforcement assistance.

Amendments to the Code also enable an employee who is seriously injured or ill to take unpaid leave of up to 17 weeks, and extend the length of the compassionate care leave an employee may take from 8 weeks to 28 weeks. These changes will align Manitoba's leave provisions with employment insurance benefits available under federal legislation. To qualify for compassionate care leave, the minimum period of time that the employee must have worked for the same employer is extended from 30 to 90 days.

Employers and others must maintain confidentiality in respect of all matters relating to an employee's leave, and they are prohibited from disclosing such information except to persons who require the information to carry out their duties.