31-Jan-2001
The New Brunswick government has enacted a six-point package of “family friendly” amendments to the Employment Standards Act, the first substantive amendments to the legislation since 1988. These new provisions became effective on December 31, 2000 and make significant changes to a number of areas covered by the legislation. Among them are increased vacation entitlement, a provision increasing child care leave to match extended federal Employment Insurance benefits, sick leave, family responsibility leave, court leave and modifications to bereavement leave provisions, as outlined below.
Vacations and Vacation Pay
Previously, the legislation provided for a minimum of the lesser of two weeks vacation leave annually, or one day per calendar month worked in the 12 month “vacation year” ending June 30 in any year. The new version divides employees into two groups: those with eight or more years continuous employment, and those with less than eight years continuous employment.
For those with eight years or more, the minimum annual vacation leave is increased to the lesser of three weeks, or 1¼ days per calendar month. For those employees with less than eight years continuous employment, the entitlement remains at the old standard of the lesser of two weeks, or one day per calendar month.
The vacation pay provisions have also been amended to reflect the two groups of employees. Previously, vacation pay was set at 4% of employee wages, the new amendment retains that level of vacation pay for those employees with less than eight years continuous employment, but increases the vacation pay to 6% for those with eight or more years of service.
This two-level pay standard is also applicable on termination of employment. Again, those employee with less than eight years’ employment are entitled to receive vacation pay equivalent to 4% of wages on termination, and those with eight or more years get the 6% rate under the new provisions.
Child Care Leave
Section 44 of the Act, which deals with child care and parental leave, has been substantially changed. With the birth or adoption of a child, the employee, having provided the requisite notice and medical certificates, is now entitled to receive up to 37 consecutive weeks of unpaid parental leave. This is a significant increase over the 12 weeks provided under the previous provisions and is in addition to the available 17 weeks unpaid maternity leave under section 43 of the Act. These changes correspond with the extension of Employment Insurance benefits recently enacted by the federal government. (See the Fall 2000 issue of Atlantic Employers Counsel for an article detailing the recent changes to the EI legislation)
In light of the additional leave now available to employees, certain sections of the Act which provided for an extension of up to five weeks in the event of illness of the child, and which limited the extended leave to ending 52 weeks following the birth or adoption, have been repealed.
Where both parents are employees, the parental leave may be shared, but the total cannot exceed 37 weeks. Similarly, where maternity leave (under section 43) is taken before the 37 weeks' parental leave, the aggregate and shared leave arrangements may not exceed a total of 52 weeks, and must end no later than 52 weeks after the birth or adoption of the child.
Sick Leave
There is an important new obligation placed on employers with respect to sick leave. An employer shall grant to employees with more than 90 days employment, up to five days unpaid sick leave within a 12 month period. If that sick leave is four consecutive days or more in length, the employer may require that the employee provide a medical certificate to prove the inability to work. Additionally, an employee taking this type of leave shall give notice and advise the employer of the anticipated duration of the leave.
Family Responsibility Leave
There is another new type of leave requirement imposed by the amendments. Employers must now grant an employee up to three days unpaid leave in a 12 month period, to “meet responsibilities related to the health, care or education of a person in a close family relationship with the employee.”
As with the sick leave described above, the employee must give notice, but unlike sick leave, there is no minimum 90 days employment qualification before an employee can access this benefit.
Court Leave
Another new leave provision provides for an unpaid leave of absence for an employee to attend court, either as a witness or for jury duty. The amount of leave is the duration of the court proceeding. Employers who pay employees during court leave (ie. pursuant to a collective agreement requirement) are entitled to have the employee reimburse the employer for any attendance fees that are paid by the court. The reimbursed amount does not include the witness’s or juror’s travel, meal and accommodation allowances.
Bereavement Leave
Previously, the relatives to the bereaved employee were defined and unpaid bereavement leave limited to those types of relatives. The new section removes these limiting definitions and bereavement leave now applies where the deceased is “a person in a close family relationship” to the employee. Bereavement leave is also available for memorial services as well as funerals.
Under the previous provisions there were two types of bereavement leave; an employee could take three days’ leave for immediate family, one day for other, more distant relatives. Now, the time allowed for bereavement leave is increased from three consecutive calendar days to five consecutive calendar days, with no distinction between immediate family and other relatives.
Leaves Generally
Employees taking a leave of absence under the Act will be deemed to be continuously employed during the leave. That means that taking a leave of absence within the parameters of the act will not cause an employee’s continuous service to be broken.
Stay Tuned - More to Come
These amendments are only the first stage in what is expected to be a significant reform to the Employment Standards Act. Minister Norm McFarlane has been quoted as stating that his department is still working on a comprehensive overhaul of the province’s minimum workplace rules and that more reforms are likely to be tabled this spring. It is anticipated that these will include new standards for overtime pay and hours of work, among others.
Should you have any questions about these changes to New Brunswick’s legislation please do not hesitate to contact any member of our Labour and Employment Practice Group:
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| Gérard La Forest, Q.C. | 443.0135 |
| Gordon Petrie, Q.C. | 443.0150 |
| William Goss, Q.C. | 443.0152 |
| Fred McElman | 444.8979 |
| Richard Petrie | 443.0155 |
| Heather Hobart | 443.0132 |
| James Petrie | 443.0158 |
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| André Richard | 853.1962 |
| Stephen McNally | 383.2221 |
| Jolène Richard | 383.2222 |
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| James LeMesurier | 632.2776 |
| Stephen Hutchison | 632.2784 |
| Catherine Lahey | 632.8307 |
| Heather Shields | 637.9222 |
