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The Employment Standards Code Amendment Act

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S.M. 2003, c. 7

Bill 4, 2nd Session, 38th Legislature

The Employment Standards Code Amendment Act

(Assented to December 4, 2003)

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 the following:

MATERNITY LEAVE, PARENTAL LEAVE AND COMPASSIONATE CARE LEAVE

3           The following is added after section 59.1:

COMPASSIONATE CARE LEAVE

Definitions

59.2(1)     The following definitions apply in this section.

"common-law partner" of a person means a person who, not being married to the other person, is cohabiting with him or her in a conjugal relationship of some permanence. (« conjoint de fait »)

"family member", in relation to an employee, means

(a) a spouse or common-law partner of the employee;

(b) a child of the employee or a child of the employee's spouse or common-law partner;

(c) a parent of the employee or a spouse or common-law partner of the parent; and

(d) any other person who is a member of a class of persons prescribed in the regulations for the purpose of this definition. (« membre de la famille »)

"physician" means a physician who provides care to a family member and who is entitled to practise medicine under the laws of the jurisdiction in which the care is provided. (« médecin »)

Entitlement to leave

59.2(2)     Subject to subsections (3) to (8), an employee who has been employed by the same employer for at least 30 days is entitled to compassionate care leave of up to eight weeks to provide care or support to a seriously ill family member.

Physician's certificate

59.2(3)     For an employee to be eligible for leave, a physician must issue a certificate stating that:

(a) a family member of the employee has a serious medical condition with a significant risk of death within 26 weeks from

(i) the day the certificate is issued, or

(ii) if the leave was begun before the certificate was issued, the day the leave began; and

(b) the family member requires the care or support of one or more family members.

Employee to give notice to employer

59.2(4)     An employee who wishes to take a leave under this section must give the employer notice of at least one pay period, unless circumstances necessitate a shorter period.

Employee to provide physician's certificate

59.2(5)     The employee must give the employer a copy of the physician's certificate as soon as possible.

When leave may be taken

59.2(6)     An employee may take no more than two periods of leave totalling no more than eight weeks, which must end no later than 26 weeks after the day the first period of leave began.

Minimum period of leave

59.2(7)     No period of leave may be less than one week's duration.

Ending leave early

59.2(8)     Unless the employee and employer agree otherwise, an employee may end a leave earlier than the expiry of eight weeks by giving the employer at least 48 hours' notice of his or her expected date of return.

4           Section 60 is replaced with the following:

No termination or lay-off

60(1)       No employer shall lay off or terminate the employment of an employee entitled to take a leave under this Division because the employee is pregnant or intends to take a leave or takes a leave allowed by this Division.

Reinstatement

60(2)       At the end of an employee's leave under this Division, the employer shall reinstate the employee to the position the employee occupied when the leave began or to a comparable position, with not less than the wages and any other benefits earned by the employee immediately before the leave began.

Exception

60(3)       Subsections (1) and (2) do not apply if the employer lays off the employee, terminates his or her employment or fails to reinstate for reasons unrelated to the leave.

Employment deemed continuous

60(4)       For the purpose of pension and other benefits, the employment of an employee with the same employer before and after a leave under this Division is deemed to be continuous.

Right to file complaint

60(5)       An employee who claims

(a) that he or she has been laid off or that his or her employment has been terminated contrary to subsection (1); or

(b) that he or she has not been reinstated as required by subsection (2);

may file a complaint with an officer under section 92.

Complaint to be filed within six months

60(6)       A complaint must be filed within six months after the date of the lay-off or termination, or within six months after the date the employee should have been reinstated.

5           Section 92 is amended

(a) in the section heading of the English version, by striking out "re unpaid wages"; and

(b) by adding the following after clause (a):

(a.1) subsection 60(5) (leave of absence);

6           The following is added after section 96:

Compensation or reinstatement order

96.1(1)     If an officer investigating a complaint determines that an employer has contravened section 60, the officer may by order require the employer to pay compensation to the director for any loss the employee incurred as a result of the contravention, or reinstate the employee, or do both.

Administrative costs

96.1(2)     An order under subsection (1) must also require the employer to pay administrative costs of $100., or 10% of any compensation ordered, whichever is more, to a maximum of $1,000.

Compensation deemed to be wages

96.1(3)     For all purposes under this Code,

(a) a complaint that results or might result in an order of compensation or reinstatement under this section is deemed to be a complaint relating to unpaid wages; and

(b) compensation ordered to be paid under this section is deemed to be wages due and payable to the employee, and an order to pay compensation is deemed to be an order for the payment of wages made under subsection 96(1).

No maximum amount

96.1(4)     Subsection 96(2) (maximum amount recoverable by employee) does not apply to a compensation order made under this section.

7           Subsection 110(1) is replaced with the following:

Person named in order may request referral

110(1)      A person named in an order made under this Part in respect of a complaint relating to unpaid wages may request the director to refer the matter to the Board, and the director shall, subject to sections 109 and 111, refer the matter.

When request must be made

110(1.1)    A request under subsection (1) must be made

(a) within 30 days after the order is served on the person, in the case of an order made under subsection 96.1(1) (compensation or reinstatement); and

(b) within seven days after the order is served on the person, in the case of any other order;

or within any further time that the director may allow.

8           Clause 135(1)(l) is amended by adding ", compassionate care leave" after "parental leave".

9           The following is added after clause 144(1)(o):

(o.1) prescribing classes of persons for the purpose of clause (d) of the definition "family member" in subsection 59.2(1);

Coming into force

10           This Act comes into force on January 4, 2004.