Labour Code Changes – Breaks, Scheduling, Vacations & Holiday Pay

Author: Matthew Klinger

In 2019, a number of important amendments to the Canada Labour Code (the “Code”) will come into force as a result of Bill C-86 receiving royal assent. These changes will affect federally regulated employers including those in businesses such as aviation, uranium mining and processing, banks, radio and television broadcasting, and many First Nation activities – to name a few.

This post is part of a series of insights discussing the highlights of these amendments. Read the two previous posts:

• Upcoming Amendments to the Employment Leave Provisions of the Canada Labour Code
• Labour Code Changes – Deemed Continuous Employment & Temporary Help Agencies

This installment addresses a number of changes to breaks and rest periods, scheduling, vacations and holiday pay. These changes will come into force on a date to be fixed by order of the Governor in Council.

Breaks and Rest Periods

The amended Code includes a statutory obligation to provide employees with breaks and hours of rest.

The new section 169.1 requires employers to provide employees with an unpaid break of at least 30 minutes during every five consecutive hours of work. An employer can require the employee to remain at its disposal during the 30 minute break, but must then pay the employee for the break.

The new section 169.2 requires employers to provide employees with a rest period of at least eight consecutive hours between work periods or shifts. This requirement may be particularly significant to businesses where employees work variable shifts. For example, an employee who leaves work at 11 p.m. could not be required to start a shift the following morning until at least 7 a.m.

The new provisions regarding breaks and rest periods are subject to an exception for emergencies, where it is necessary for an employee to work to address a situation the employer could not have reasonably foreseen and where the situation presents an imminent or serious threat of harm to the health or safety or any person, property damage, or serious interference with the ordinary operation of the workplace.

Notice of Schedules

Federally regulated employers must provide each employee with at least 96 hours’ advance notice of his or her scheduled hours of work – subject to the same exception for emergencies discussed above.

This obligation is added by a new section 173.01. If an employer prepares a schedule that requires an employee to work during a period which is less than 96 hours from the time the employee received the schedule, the employee has a right to refuse that work. Employers are prohibited from dismissing, suspending, laying off, demoting, disciplining or making promotion or training decisions based on such a refusal.

This provision is subject to an exception for employees whose employment is governed by the collective agreement. If the collective agreement specifies an alternate time frame for providing a schedule, then the terms of the collective agreement govern instead of the provisions of the Code. Therefore, employers who are parties to a collective agreement may be able to negotiate alternate scheduling requirements which better address the conditions in their workplaces.

Breaks for Medical Reasons or Nursing

The amended Code will see the addition of section 181.1. This new section will require employers to provide unpaid breaks to employees – either to accommodate any medical concerns of the employee or to allow the employee to nurse or express breast milk.

An employer is obligated to provide these breaks upon receiving an appropriate request from an employee. An employer can request a certificate from a health care practitioner to justify the need for, length and frequency of breaks which are requested for medical reasons. The obligation to provide these breaks will be subject to regulations which have not yet been enacted.

Vacation Entitlements

The amendment of section 184 and addition of section 184.01 of the Code provide for enhanced vacation entitlements for long service employees, and also clarify how vacation pay is to be calculated.

The new entitlements are set out in the following table:

Note that “wages” are broadly defined by the Code, and include every form of remuneration except for tips and other gratuities.

If an employee ceases to be employed, he or she must be paid vacation pay calculated on his or her wages for the part of the year in which he or she worked, at the percentage rate corresponding to the year of employment he or she partially completed.

For example, an employee who leaves employment after six months would be entitled to an additional payment of 4% of his or her wages during that period. An employee who left their employment after nine years and six months would be entitled to an additional payment of 8% of his or her wages for the preceding six months.

Holiday Pay

The amendments to the Code eliminate the minimum length of service requirement to allow access to general holiday pay. The amendment repeals the current subsections 196(3) and (5) of the Code which provided for a 30-day waiting period before employees were entitled to holiday pay. Employees are entitled to holiday pay with respect to any holidays, even if that holiday occurs shortly after they are hired. The amount of holiday pay to which employees are entitled remains 1/20^th of the wages (other than overtime pay) the employee earned in the four-week period preceding the holiday.

Conclusion

While these provisions are not yet in force, federally regulated employers should be mindful of the dates these measures will come into effect, and ensure their employment policies reflect the upcoming changes. While employers may provide more generous conditions of employment than those set out in the Code, employers cannot provide employees with less than what is contained in the legislation.

Our team of labour and employment lawyers can answer questions and help your organization prepare for the upcoming changes to the Canada Labour Code.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.