November 26, 2003by Israel Foulon LLP
Question: Can you provide me with some information regarding the new changes to the Employment Insurance Act and the Canada Labour Code with respect to compassionate care benefits?
On Jan. 4, 2004, changes to the Employment Insurance Act and the Canada Labour Code will come into force. The Employment Insurance Act will be amended to provide for compassionate care benefits and the Canada Labour Code will be amended to provide for compassionate care leave. It is important to distinguish an employee’s entitlement to collect compassionate care benefits under the amended Employment Insurance Act from an employee’s entitlement to take compassionate care leave as provided for under the Canada Labour Code.
The changes to the Employment Insurance Act will provide for compassionate care benefits to be payable if a medical doctor has issued a certificate stating that a family member has a serious medical condition with a significant risk of death within 26 weeks and the family member requires the care or support of one or more other family members.
The Employment Insurance Act defines “family member” as:
- a spouse or common-law partner;
- a child, or a child of the individual’s spouse or common-law partner; and
- a parent or spouse or common-law partner of the parent.
“Care and support” can be demonstrated if a claimant: provides, or participates in providing, care to the family member; provides psychological or emotional support to the family member; or arranges for a third-party care provider to provide care to the family member. Such benefits can be shared among a number of claimants in respect of the same family member.
The changes to the Canada Labour Code will require an employer to grant to an employee a leave of absence of up to eight weeks to enable the employee to provide care or support to a family member if a qualified practitioner issues a certificate stating the family member has a serious medical condition with a significant risk of death within 26 weeks.
The employer has the right to request, in writing, that the employee provide it with a copy of the medical practitioner’s certificate. The Canada Labour Code provides the same definition of “family member” as the Employment Insurance Act. The Canada Labour Code states an employee may only take compassionate care leave in periods of not less than one week’s duration and the aggregate amount of leave that may be taken by two or more employees in respect of the same family member cannot exceed eight weeks.
Compassionate care benefits: What are the new changes?
Question: How will the changes impact employees of federally or provincially regulated businesses?
Answer: Employees who work in federally regulated businesses, such as those who work for banks, airlines or railways, will be entitled to the compassionate care benefits under the Employment Insurance Act and the compassionate care leave under the Canada Labour Code.
Unfortunately provincially regulated employees will be prevented from taking full advantage of the changes to the Employment Insurance Act. Many provincial employment standards statutes currently provide employees with leave entitlement for family responsibility purposes; however, the length of leave is typically between three and 10 days. This is much less time than provided for under the changes to the Canada Labour Code, where employees are entitled to up eight weeks of leave. Unless the provincial governments extend the length of time an employee is entitled to take for compassionate care leave, the provincial standards legislation will be in conflict with the entitlement to compassionate care benefits as provided for under the Employment Insurance Act, and many employees in Canada will be unable to take full advantage of the federal legislative changes.
The provincial government in Nova Scotia has proposed amendments, and the Quebec government has implemented amendments, to the applicable labour standards statutes to extend the length of time an employee is entitled to a leave of absence to provide care or support for a family member so that employees who take leave under these provisions may also qualify for the full compassionate care benefits provided for under the Employment Insurance Act.
The changes to the Employment Insurance Act and the Canada Labour Code are noble as they affirm an employee’s right to provide care and support for family members. Unfortunately, unless the Employment Insurance Act and the provincial employment standards legislation are reconciled in respect of compassionate care leave entitlement, the right of many provincially regulated employees to take compassionate care leave, and thus the right to the corresponding benefits, cannot be accessed. Instead, an employee’s right to a leave of absence will be governed by existing rights under the applicable employment standards legislation, the terms of the employment contract or collective agreement and by the employer’s willingness to permit an employee to take a leave of absence for compassionate purposes.
Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or firstname.lastname@example.org. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today