Regulations Amending the Canada Labour Standards Regulations: SOR/2020-226
Canada Gazette, Part II, Volume 154, Number 22
Registration
SOR/2020-226 October 14, 2020
CANADA LABOUR CODE
P.C. 2020-804 October 9, 2020
Whereas the Governor in Council is satisfied that providing for the non-application of the requirement set out in subsection 239(2) footnote a of the Canada Labour Code footnote b respecting a certificate issued by a health care practitioner and providing for an alternative requirement is necessary to reduce the strain on the health care system or any burden on employees;
Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Labour, pursuant to paragraph 264(1)(j.5) footnote c of the Canada Labour Code footnote b, makes the annexed Regulations Amending the Canada Labour Standards Regulations.
Regulations Amending the Canada Labour Standards Regulations
Amendments
1 (1) The Canada Labour Standards Regulations footnote 1 are amended by adding the following after section 33:
Entitlement to Medical Leave Without Certificate
33.01 (1) The requirement set out in subsection 239(2) of the Act for an employee to provide a certificate issued by a health care practitioner on request of the employer does not apply during the period beginning on the day on which this section comes into force and ending on September 25, 2021.
(2) During the period referred to in subsection (1), if a medical leave of absence is three days or longer, the employer may require that the employee provide a written declaration attesting to the fact that the employee was incapable of working for the period of time that they were absent from work.
(2) Section 33.01 of the Regulations and the heading before it are repealed.
Coming into Force
2 (1) Subject to subsection (2), these Regulations come into force on the day on which they are registered.
(2) Subsection 1(2) comes into force on September 25, 2021.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issues
The COVID-19 Emergency Response Act (the Act) amended Part III (Labour Standards) of the Canada Labour Code (the Code) to allow federally regulated employees to access compassionate care leave, leave related to critical illness and medical leave without needing to provide a medical certificate. The Act also amended the Employment Insurance Act (the EI Act) to waive all requirements to provide a medical certificate under the EI Act. Together, these measures were intended to reduce strain on the health care system and help prevent the transmission of COVID-19. Both measures were automatically repealed on September 30, 2020.
In the context of the COVID-19 pandemic, requiring individuals to obtain a medical certificate risks further transmission of the disease and adds additional strain on the medical system. First, an individual experiencing symptoms of COVID-19 risks transmitting the virus to others while travelling to and from a doctor’s office or while awaiting a test or appointment with a doctor. Second, someone who is injured or sick with illnesses other than COVID-19 risks exposure to the virus while travelling to and from a doctor’s office or while waiting to be seen by a doctor. Finally, obtaining medical certificates can put strain on the health care system by resulting in non-urgent visits to doctors and other health care practitioners for the sole purpose of obtaining a medical certificate.
Medical leave under the Code is designed to provide employees in the federally regulated private sector with the job-protected leave they need if they are ill or injured and need to avail themselves of Employment Insurance (EI) sickness benefits. Interim Order No. 10 Amending the Employment Insurance Act (Employment Insurance Emergency Response Benefit) [Interim Order No. 10] made pursuant to the EI Act, extends the waiver for the purposes of EI sickness benefits, meaning that applicants will not be required to provide a medical certificate in order to access these benefits. Interim Order No. 10 came into force on September 27, 2020, and will cease to apply on September 25, 2021. However, since October 1, 2020, employers once again became entitled to require employees to provide medical certificates if they take a medical leave for three or more days following the repeal of the waiver on September 30, 2020. Therefore, if the waiver is not reinstated, an employee could be required to obtain a medical certificate by his or her employer despite not needing to provide such a certificate in order to qualify for EI sickness benefits.
Allowing employers to require medical certificates would undermine the effectiveness of the waiver introduced as part of Interim Order No. 10, as it would require employees in the federally regulated private sector to risk exposing themselves or others to COVID-19 in order to access the leave they need to recover from their illness or injury. It would also increase the number of non-urgent medical visits by employees to medical offices for the sole purpose of seeking medical certificates, adding an unnecessary burden on the health care system.
Some of the mandatory analytical requirements related to this proposal may have been adjusted, as it is related to the Government of Canada’s response to COVID-19.
Background
The COVID-19 acute respiratory disease is a condition in which affected individuals can develop fever, cough and/or difficulty breathing. COVID-19 has clearly demonstrated that it can cause severe, life-threatening respiratory disease. In more severe cases, infection can cause pneumonia, severe acute respiratory syndrome, kidney failure and death.
Canadians have been urged to maintain their vigilance and follow public health guidance as much as possible to contain the spread of the disease. At the outset of the pandemic, many elective surgeries and other procedures were cancelled in order to reduce strain on the health care system and limit the possibility that hospitals and other medical facilities would become vectors for transmission of COVID-19. While these restrictions have eased and elective procedures are once again being performed, the number of new COVID-19 cases has been rising in Canada, fuelled largely by recent increases in Ontario and Quebec. On September 28, 2020, footnote 2 Ontario reported its highest number of daily new infections since the beginning of the pandemic, while Quebec recorded its highest number since May 6, 2020. footnote 3 With hospitalizations and intensive care unit (ICU) admissions acting as a lagging indicator of COVID-19 infections, these increases in new infections are expected to result in an increase in COVID-19-related hospitalizations and ICU admissions. As a result, medical facilities in some jurisdictions could be under increased stress due to the increasing numbers of COVID-19 patients, amplifying the risk that these facilities could become vectors for transmission.
Objective
The objective of these Regulations is to reduce employees’ risk of exposure to COVID-19 and reduce strain on the health care system.
Description
The Regulations, made pursuant to paragraph 264(1)(j.5) of the Code, will amend the Canada Labour Standards Regulations to temporarily suspend an employer’s ability to require an employee to provide a certificate from a health care practitioner if he or she is absent for three or more days on medical leave. Instead, employers will be able to require employees to provide a written declaration attesting to the fact that they were incapable of working during the period in which they were absent.
Regulatory development
Consultation
These Regulations will temporarily suspend an employer’s ability to request medical certificates to justify employee absences of three or more days under medical leave. This measure needs to be in place expeditiously to be effective. Consequently, there was insufficient time to hold formal consultations with stakeholders. Instead, employer and labour stakeholders were informed of the proposed new measure and asked to provide their feedback.
Labour stakeholders indicated that they were supportive of the measure, given the ongoing uncertainty surrounding the COVID-19 pandemic. By contrast, employer representatives expressed strong opposition, arguing that medical certificates help to manage absenteeism and that this is an important management right that the government should not waive.
Instrument choice
Medical certificate requirements under the Code may be modified or suspended by regulations made under paragraph 264(1)(j.5) of the Code. There is no discretion in choice of instruments. If regulations are not made, employees who take medical leave and avail themselves of EI sickness benefits could be required to obtain a medical certificate, undermining the intent of Interim Order No. 10, adding unnecessary strain to the health care system, and potentially exposing more workers to COVID-19.
Modern treaty obligations and Indigenous engagement and consultation
There are no implications for modern treaty obligations or Indigenous engagement in these Regulations.
Regulatory analysis
Costs and benefits
The analytical requirements for cost-benefit analysis (CBA) have been adjusted, as it relates to the response to COVID-19. The CBA compares the baseline with the regulatory scenario to provide a qualitative assessment of the incremental costs and benefits. The CBA concludes that the Regulations will not impose any incremental costs on employees, while employers may face increased costs if employees take more or longer medical leaves due to the Regulations, as compared to if the employer were able to require the employee to provide a medical certificate after three or more days of absence. However, this is expected to be mitigated by employers’ recent experiences administering medical leave without requiring employees to provide medical certificates due to the legislative waiver introduced on March 25, 2020. The Government will also incur some costs to implement the regulatory changes.
Baseline scenario
As of October 1, 2020, employers are able to require that an employee obtain and provide a medical certificate if he or she takes a medical leave of absence for three or more days. This situation could undermine the goal and intent of Interim Order No. 10, which waives medical certificate requirements for EI sickness benefits, by adding unnecessary strain to the health care system, and potentially exposing more workers to COVID-19.
Regulatory scenario
Under the regulatory scenario, an employer’s ability to require an employee to provide a medical certificate if they take a medical leave of absence for three or more days will be suspended. Instead, the employer will be entitled to require an employee to provide a written declaration attesting to the fact that he or she was incapable of working during the period of the leave, provided the leave is three or more days in length. This change is temporary; the Regulations came into force upon registration and will be automatically repealed on September 25, 2021.
Incremental costs and benefits
The Regulations have no negative cost implications for employees. Instead, they have two potential benefits. The first is financial, as many health care practitioners charge fees to patients for issuing routine medical certificates to justify an employee’s absence. The second is health-related, as associations, such as the Canadian Medical Association, have publicly advocated against requiring medical certificates for minor absences, because it risks employees’ and others’ health, as employees may spread or contract illnesses if they have to seek a medical certificate rather than recovering at home.footnote 4
The Regulations may have limited negative cost implications for employers. To the extent that requiring an employee to obtain a medical certificate can be considered a deterrent to abusing the medical leave, it is reasonable to expect that suspending the employer’s ability to exercise this deterrent could result in some employees taking more and/or longer medical leaves. Longer and/or more frequent leaves would impose costs on employers associated with redistributing the employee’s work among existing employees or replacement employees. However, the Regulations allow employers to require an employee to provide a written declaration attesting to the fact that they were incapable of working during the period of their absence if that absence was three or more days. Providing employers with the option to request an attestation could contribute to reducing the possibility of abuse. A further mitigating circumstance is the fact that between March 25, 2020, and September 30, 2020, employers’ ability to request a medical certificate for medical leaves lasting three or more days was suspended. Employers will have adjusted their policies and systems to account for this change and thus are expected to have developed means of identifying potential abuse. Indeed, the Labour Program has not received any complaints from employers alleging that employees are taking advantage of the medical leave as a result of the waiver.
Any incremental medical leave that is taken as a result of the employee not being required to provide a medical certificate can be attributed to these Regulations. When an employee takes a medical leave of absence, the employer bears a cost. Employers who pay other employees overtime to complete the work of an employee who is on leave would face incremental costs. Based on the average weekly wage in the federally regulated private sector, this incremental cost is estimated at approximately $600 per marginal week of absence, per employee.footnote 5 This assumes that each hour that the employee who is on leave would have worked is covered by assigning overtime to another employee making the same wage.
The Regulations are expected to benefit employers in two ways. First, the Regulations will reduce the possibility that COVID-19 and other infectious illnesses will be spread in their workplace. According to a survey conducted in 2018 by the Canadian Medical Association, eight out of ten respondents said they were more likely to report to work while sick if their employer required a sick note for a minor illness.footnote 6 Employees attending work while sick with COVID-19 or another communicable illness could lead to further absences and increased costs for employers. Second, employers are currently required to retain medical certificates related to medical leave, and their requests for those medical certificates, for a period of three years. These Regulations are therefore expected to result in a minor reduction in their administrative costs, as there will be no medical certificates to retain during the life of the Regulations. Estimates for these administrative savings are provided in the one-for-one rule section below.
The cost of implementation of the Regulations for the Government of Canada will be low and absorbed through existing operating resources. The resources will be used to update communication and outreach materials, training materials, and to inform the Employment and Social Development Canada (ESDC) Labour Program inspectors of the changes.
| Stakeholder | Cost Item and Description | Benefit Item and Description |
|---|---|---|
| Employees | No costs to employees have been identified. | The Regulations
|
| Employers | Insofar as these Regulations lead to employees taking more or longer medical leaves due to not being required to provide medical certificates, it may impose the following costs on employers:
|
The Regulations will contribute to reducing the possibility that COVID-19 and other infectious illnesses will be spread in the workplace. According to a survey conducted in 2018 by the Canadian Medical Association, eight out of ten respondents said they were more likely to report to work while sick if their employer required a sick note for a minor illness. Employees attending work while sick with COVID-19 or another communicable illness could lead to further absences and increased costs for employers. |
| Canadians | No costs to the broader public have been identified. | The Regulations benefit the broader public by ensuring that employees who are sick can remain home, limiting the possibility of them spreading COVID-19 and other illnesses to others. |
| Government | The Government will incur minor implementation costs to update communication and outreach materials, training materials, and inform ESDC Labour Program inspectors of the changes. |
Small business lens
Small businesses represented approximately 95% of all employers in the federally regulated private sector, but employed approximately 13% of all employees in 2019. These businesses are generally less well equipped to absorb absences of employees as compared to larger businesses. This is due to their small workforce and their consequently limited ability to reassign the absent employee’s work to other employees. Insofar as employees take longer or more medical leaves as a result of not being required by their employer to provide a medical certificate, this may result in incremental costs for small businesses needing to retain or hire replacement workers to complete the work of an employee who is on leave due to not being required to produce a medical certificate after these Regulations come into force. This could result in minor costs associated with retaining and/or onboarding replacement workers to cover for the employee’s additional period of absence.
Additional flexibility for small businesses is provided to employers by allowing them to require employees to provide a written declaration as a substitute to a medical certificate. Removing the requirement for a medical certificate will also benefit small businesses by reducing the risk of more widespread clusters of COVID-19 that could occur if requiring medical certificates were to prevent people from self-isolating.
One-for-one rule
The one-for-one rule applies because there is an incremental decrease in administrative burden on federally regulated employers.
Pursuant to paragraph 24(2)(l) of the Canada Labour Standards Regulations, federally regulated employers are required to retain copies of medical certificates they receive related to medical leave, as well as their requests to employees for those medical certificates. By temporarily removing employers’ ability to request these medical certificates, employers will not be required to file and retain these certificates and requests during the life of the Regulations. The annualized reduction in administrative costs over a 10-year period is estimated to be $4,597 or $0.25 per employer (2012 Can$).
The administrative burden cost reduction was calculated assuming that it takes on average five minutes for an employer to file and, if required, produce each medical certificate. Based on historical data, it is assumed that this will occur for the purposes of proof of compliance at a frequency of 1.3 times per each of the 18 500 employers subject to these Regulations. This task is assumed to be done by administrative occupations at an hourly cost of $29.64.
Regulatory cooperation and alignment
Responsibility for the regulation of labour matters is constitutionally divided between the federal, provincial and territorial governments. The federal government has exclusive authority to legislate labour standards for the federally regulated private sector (e.g. banking, telecommunications, broadcasting and inter-provincial and international transportation), federal Crown corporations, as well as for certain activities on First Nations reserves. This includes about 955 000 employees (or approximately 6% of all employees in Canada) working for 18 500 employers.footnote 7
Labour standards for other sectors — such as manufacturing, construction, primary industries, and wholesale and retail trade — fall within the exclusive jurisdiction of the provinces and territories. Four of these provinces’ labour standards legislation (Alberta, Manitoba, Quebec and Saskatchewan) provide employees in their jurisdictions with access to long-term job protected leave (i.e. leave of more than two weeks) in the event that they are ill or injured, facilitating their access to EI sickness benefits. All four of these jurisdictions either require the employee to provide a medical certificate or allow the employer to request a medical certificate in order to access the leave. In addition, as part of their response to COVID-19, 10 provinces and territories have introduced or activated special leaves of absence related to COVID-19. These include Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, Prince Edward Island, Saskatchewan and the Yukon. With the exception of Yukon, each of these jurisdictions provides for an indefinite leave of absence where an employee is incapable to work for reasons related to COVID-19, including caregiving responsibilities arising due to COVID-19. Medical certificates are not required to access any of these leaves.
Given time constraints, the Labour Program did not hold discussions with provinces and territories regarding waiving medical certificate requirements in their labour standards legislation.
Strategic environmental assessment
A preliminary environmental scan revealed no environmental impacts associated with these amendments.
Gender-based analysis plus (GBA+)
The Regulations prevent individuals from being potentially exposed to illnesses, including COVID-19, while seeking to obtain a medical certificate following an employer’s request. Unfortunately, there is no information available on the characteristics of employees who take medical leave under the Code. This is due to the fact that leaves of absence are discussed and arranged directly between employers and employees with no government involvement.
However, there is evidence to suggest that the Regulations will disproportionately benefit women, as women are more likely to take sickness-related leave than men, and these leaves tend to last longer on average than those of men. For instance, in 2018−2019, women established more claims for EI sickness benefits (56.1%) than men (43.9%) and received benefits for longer, on average, than men (10.1 weeks compared to 9.4 for men).footnote 8 There is also evidence to suggest that, in general, women tend to have higher sickness absence rates than men.footnote 9
Implementation
The Regulations came into force upon registration.
The ESDC Labour Program will prepare interpretation and guidance materials for employees and employers on their new rights and responsibilities, specifically to allow employers time to implement any necessary changes to their workplace policies and procedures. These materials will be available on the Canada.ca website.
Contact
Douglas Wolfe
Senior Director
Strategic Policy, Analysis and Workplace Information Directorate
Labour Program
Employment and Social Development Canada
165 Hôtel-de-Ville Street
Place du Portage, Phase II, 9th Floor
Gatineau, Quebec
Email: douglas.wolfe@labour-travail.gc.ca