Canadian Employment Law Today

June 20, 2018

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Have a question for our experts? Email Canadian HR Reporter, a Thomson Reuters business 2018 2 | June 20, 2018 with Leah Schatz Ask an Expert MLT AIKINS LLP, SASKATOON Answer: It will depend on the province and the specifi c employment standards legisla- tion requirements. In some provinces an employer can deny bereavement or other similar leave to employees with two months or less of continuous service to the employer. Many provincial employment standards statutes provide that to be entitled to such leave, the employee must have been in the employer's service for a minimum amount of time. Even where an employee is not eligible for protected bereavement or other similar types of leave, the employer will also want to consider whether the request for leave raises human rights considerations. In Alberta, employees are only eligible for bereavement leave if they have been employed for at least 90 days with the same employer. Other forms of leave that are also subject to this 90-day qualifi cation period in- clude: compassionate care leave, critical ill- ness leave, and personal and family respon- sibility leave. In Saskatchewan, the threshold is calculated in terms of weeks. Employees in Saskatchewan must have been employed for 13 weeks in order to be entitled to bereave- ment leave. e qualifi cation period is also 13 weeks in order to access critically ill child care leave, compassionate care leave and crime-related child death or disappearance leave. Employers in Manitoba will need to be especially careful to reference their employ- ment standards legislation, since the legisla- tion sets out diff erent qualifi cation periods for diff erent types of leaves. Some types of leaves have a 30-day qualifi cation period. Bereavement and other similar leaves, such as critical child illness, or death or disap- pearance of a child leave are subject to this 30-day qualifi cation period. However, other leaves, such as compassionate care leave, are subject to a 90-day qualifi cation period. ere are also some provinces where there is no qualifi cation period of employment in order to be entitled to bereavement or other similar forms of leave. In British Columbia, an employee does not need to be employed for a specifi c amount of time to qualify for bereavement or other similar leave, such as family responsibility and compassionate care leave. In Ontario, an employee is immediately entitled to personal emergency leave. An employee can access personal injury leave where there is a death, a personal illness, a medical emergency, or an urgent matter re- lating to specifi c relatives. Ontario employ- ees with at least one week of employment with the same employer are entitled to two days of paid personal emergency leave. Em- ployees with less than one week of service are entitled to unpaid leave; however, the fi rst and second days of leave taken after the employee's fi rst week of employment must be paid to the employee. Finally, there is no qualifi cation period for an employee to be entitled to the protections aff orded by human rights legislation. An em- ployer will therefore want to consider if there are any human rights considerations that apply. If the reason for the request for leave relates to a prohibited ground of discrimina- tion (such as family status), there may be a duty to accommodate. Have a question for our experts? Email Have a question for our experts? Email Short-term employee's leave request Question: Can an employer deny bereavement or other leave to a short-term probationary employee of two months or less? Employee refuses to take vacation Question: If an employee is warned to take vacation before the end of the year or face losing it but chooses not to take it, does the employer have to provide anything in lieu? Answer: In Canada, an employer is not per- mitted to have a "use it or lose it" vacation policy with respect to statutory vacation entitlements. e specifi c requirements for how an employee is to take vacation time off varies from jurisdiction to jurisdiction. For example, in Alberta, after the fi rst year of employment an employee must take vacation time off within 12 months of it be- ing earned. In Saskatchewan, employees are also entitled to vacation time after one year of employment and are similarly required to take it within 12 months. Employers must ensure that an employee takes his vacation time off within the required period. As such, if the employer and employee cannot agree on when the employee should take his time off , the employer can unilaterally set the em- ployee's vacation time, so long as it gives the employee four weeks' written notice. Employees in British Columbia are en- titled to their annual vacation after complet- ing one year of employment. As in the other western provinces, B.C. employees are re- quired to take their vacation time within 12 months of it being earned and employees are prohibited from foregoing their annual vaca- tion in favor of pay in lieu of time off . Manitoba's employment standards leg- islation requires employees to take their vacation time within 10 months of it be- ing earned. Employers and employees can schedule annual vacation by mutual agree- ment, but if they cannot agree, the employer can unilaterally set the vacation date by pro- viding 15 days' notice to the employee. Em- ployees in Ontario must also take their vaca- tion time within 10 months after completing one year of employment and employers are under a similar obligation to ensure that their employees actually take their vacation time before the end of that 10-month period. Even if the employer provides vacation entitlement over and above the minimum statutory requirements, the employer will still need to carefully consider the applicable employment standards rules. Some employ- ment standards regulators even assume au- thority over employment agreements that provide vacation time over and above what the legislation provides. is is the case in British Columbia. In British Columbia, where an employer agrees to provide vaca- tion time in excess of the minimum statu- tory requirements, employment standards offi cers can enforce that agreement. It is also important to bear in mind that some businesses may be exempted from vacation provisions or may be subject to diff erent obligations. One example of a fre- quently exempted class of employees are those who work in the construction indus- try. For example, in Alberta, employers in the construction industry do not have to give their construction employees vacation time. However, these employees are still entitled to vacation pay of at least six per cent of their wages. is is just one example of how an employer's obligations will change depend- ing on its class of business. Exemptions are many and vary between provinces. Employ- ers should be careful to confi rm whether their business is subject to any such exemp- tions. Leah Schatz is a partner with MLT Aikins LLP in Saskatoon. She can be reached at (306) 975-7144 or

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