Discussion Paper Family-Friendly Standards


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Employment Standards Code Stakeholder Consultations

Discussion Paper For use at in person consultation sessions

Family-Friendly Standards Family-Friendly Standards Alberta’s workplaces have evolved tremendously since the Code was last updated due to various employment, demographic and social trends. Employment trends indicate that the nature of work is changing across Canada. Within the past year, job growth in Canada was primarily due to the growing number of part-time jobs. Of the 140,000 positions created in the past year, 124,000 were part-time. Individuals who work shifts are reportedly less satisfied with their work, run increased health risks and show a higher level of stress. Individuals with flexible schedules reported being more satisfied with their work-life balance. Demographic trends indicate that the needs of Alberta’s workforce have evolved. Between 2006 and 2011, lone parent households increased by 10.9 per cent in Alberta. In 2014, almost threequarters of dual earner families in Canada had two parents working full time. Between 2004 and 2014, the number of Albertans aged 45 and older increased by 38.5 per cent. Social trends indicate that flexible work arrangements which support work-life balance and time-off work for family responsibilities are increasingly important to Albertan families. In 2012, 46.2 per cent of Albertans provided occasional care to a parent or parent-in-law with a long-term illness, disability or aging needs. Approximately 60 per cent of Canadian caregivers provided care while working at a paid job or business, and 28 per cent of Canadian caregivers had children under the age of 18. Parents who were caregivers were less likely to report being satisfied with their work life balance than parents who were not caregivers. The rise in part-time work, the increasing number lone-parent households and the growing aging population all highlight the shifting social dynamics that are making it increasingly challenging for employees to balance work and personal demands. The Government of Alberta believes workplace standards need to be reviewed to address these trends and is committed to making employment standards more family-friendly.

alberta.ca March 2017

Family-Friendly Standards Family-friendly standards generally refer to policies that enhance work-life balance and flexibility in the workplace. Examples include work arrangements that allow employees to take time off work to care for their family and flexible workplace practices that help employees balance work responsibilities and family care commitments. Potential avenues for implementing more family-friendly standards might be to enhance existing leaves, provide new job-protected leaves to attend to significant life events or family responsibilities, enable employers and employees to agree to averaging agreements for work hours, or provide employees the right to refuse overtime. At present, Alberta offers the least number of unpaid job-protected leaves of any province in Canada. The most common types of other leaves offered in other jurisdictions are: o o o o o

Personal emergency/family responsibility leave for family illness or other urgent matters; Bereavement leave when a close family member dies; Critically ill child leave when the employee’s child is critically ill; Death or disappearance of a child leave, as a result of crime; and Sick leave when the employee has to miss work due to a minor illness.

Recent developments indicate that new leaves, such as domestic violence leave, are being considered in other jurisdictions in Canada. Manitoba is currently the only province with a leave for victims fleeing domestic violence although British Columbia (BC) and Ontario are currently considering a similar leave through private member bills. For more information on which jurisdictions offer which leaves, please see the attached chart. Compressed work week (CWW) arrangements mean that employees work longer hours of work on each day in return for fewer days worked per week while averaging agreements clarify how overtime is calculated when hours of work under a CWW vary from week to week. Alberta’s legislation already enables compressed work week arrangements; however, providing averaging agreements may enable greater flexibility to both employers and employees in determining their scheduling needs and family responsibilities. For employees at remote worksites who travel during their days of rest to visit their families, working fewer days in a week can be more beneficial than working fewer hours in a day. For employers, averaging agreements allow greater flexibility to fit the unique scheduling needs of certain industries. Uncertainty in scheduling can impede an employee’s ability to manage family responsibilities. Providing them with some say in overtime hours would help them in this regard. Currently three jurisdictions, Saskatchewan, Quebec, and the Yukon, provide employees the right to refuse overtime to some extent or under certain conditions.

Family-Friendly Standards AB BC SK MB ON QC NB NS PEI NFLD YK NWT NU Canada

Total Jurisdictions

Maternity

X

X

X

X

X

X

X

X

X

X

X

X

X

X

14

Parental

X

X

X

X

X

X

X

X

X

X

X

X

X

X

14

Reservist

X

X

X

X

X

X

X

X

X

X

X

X

X

X

14

Compassionate Care

X

X

X

X

X

X

X

X

X

X

X

X

X

X

14

Critically-Ill Child

X

X

X

X

X

X

X

X

X

X

10

Death or Disappearance of a Child

X

X

X

X

X

X

X

X

X

X

10

Family Responsibility/ Personal Emergency

X

X

X

X

X

X

X

X

X

Bereavement

X

X

X

X

X

X

X

X

X

Jury Duty/Court Leave

X

X

X

X

Organ Donor

X

X

Citizenship

X

X

Run for office

X

Work-related injury

X

X

Minor sickness or injury

X

X

Long-term sickness or injury

X

X

X

X

X

X

X

X

4 3 1

X

X

X

X

X

X

X

X

X

3

X

10

X

4

X

Emergency leave (Gov’t declared emergency)

X

Domestic Violence

* 4

7

12 5

X

Wedding

Total Types of Leaves

9

X

1 X

2

*

14 14 11 12 10 11 10

1 9

8

7

4

An X shows that the jurisdiction offers coverage for the type of leave or circumstance in question. An asterisk (*) shows the leave was introduced through a private member’s bill and is currently under consideration.

10

Employment Standards Code Stakeholder Consultations

Discussion Paper For use at in person consultation sessions

Job-Protected Leaves Alberta currently offers four unpaid job-protected leaves: maternity, parental, reservist and compassionate care. All of these leaves provide job protection for the employee taking the leave – the employee cannot be terminated while on one of these leaves and they must be reinstated or given similar, alternate work upon their return. These provisions, established by the Employment Standards Code (Code), are only the minimum standards, and employers can provide other leaves through an employment contract or union collective agreement.

Alignment with Employment Insurance Benefits The Code also establishes standards around the application of these unpaid, job-protected leaves, such as the maximum length of the leaves and any eligibility requirements. Alberta’s maximum length of leaves compared to the equivalent federal leave and corresponding Employment Insurance (EI) benefit is as follows:

Alberta

Canada (federal)

Maximum Length of Leaves

Maximum Length of EI Benefits

Maximum Length of Leaves*

Maternity Leave

15 weeks

15 weeks

17 weeks

Parental Leave

37 weeks

35 weeks

37 weeks

Compassionate Care Leave

8 weeks

26 weeks

28 weeks

*Two week difference intended to provide the employee with job protection during two-week waiting period when they apply for the corresponding federal EI benefit. As of January 1, 2017, the two week waiting period is reduced to one week; however, the maximum length of federal leaves will remain the same.

Alberta currently provides a maximum of 15 weeks unpaid, job-protected leave, for maternity leave, which is among the shortest of Canadian jurisdictions, and up to 35 weeks unpaid, jobprotected leave, for parental leave. The federal government is consulting on the ability for parents to take the same EI benefits or leave time provided to them and spread it over 18 months.

alberta.ca March 2017

Job-Protected Leaves Currently, the Code offers a maximum of eight weeks unpaid, job-protected leave, for compassionate care leave. However, recent changes to federal EI benefits increased the compassionate care entitlement from eight to twenty-six weeks. To support employees in accessing these benefits, other jurisdictions, including Manitoba, New Brunswick, Nova Scotia and the federal government have made changes to their employment standards so that the period of unpaid, job-protected leave for compassionate care is 28 weeks. To promote family-friendly policies and fair protection for workers, Alberta is considering aligning unpaid, job protection for leaves with federal EI benefits. Apart from Alberta and British Columbia, all other Canadian provinces offer unpaid, job-protected leaves that correspond with federal EI benefits relating to the death or disappearance of a child and critically-ill children. These unpaid, job-protected leaves are generally longer in length but address rare and difficult family circumstances. Employees who are taking time away from work to cope with the death or disappearance of a child or children due to a probable Criminal Code offence may apply for a federal EI grant. Applicants may receive up to 35 weeks of income support during the 52-week period immediately following the incident. All jurisdictions that offer this unpaid, job-protected leave, apart from New Brunswick, provide 104 weeks if a child dies as a result of a crime and 52 weeks if a child disappears as a result of a crime. New Brunswick provides 37 weeks unpaid, job-protected leave for either the death or disappearance of a child. Parents who are taking time away from work to provide care or support to a critically ill child may be eligible for up to 35 weeks of federal EI benefits during a 52-week period. A critically ill child is a child who has a life-threatening illness or injury, that can include various acute phases of illness and for which continued parental support is required. This does not include a child with chronic illness or condition that is their normal state of health. There must be a significant change from the child’s normal state of health for the parents to qualify for this benefit. All jurisdictions that provide this unpaid, job-protected leave, apart from Quebec, provide up to 37 weeks of job protection within a 52-week period. Quebec provides the longest unpaid, job-protected leave for parents of critically-ill children with up to 104 weeks of job protection. In support of family-friendly policies, Alberta is considering adding new types of unpaid, jobprotected leaves which correspond with federal EI benefits.

Job-Protected Leaves Eligibility and Notice Requirements Eligibility requirements for most unpaid, job-protected leaves in Alberta, including maternity, parental and compassionate care, is that the employees must have been employed for fifty-two weeks (1 year) by their employer. This is generally the longest qualification period across Canada. In some jurisdictions, such as British Columbia and New Brunswick, there are no eligibility requirements related to these leaves, and in Saskatchewan, Manitoba and Ontario, employees typically become eligible for these leaves once they have completed about three months of employment. To support accessibility to family-friendly policies, Alberta is considering reducing the qualification period for employees who are prompted to seek access to unpaid job-protected leaves. Alberta’s Code currently requires an employee to provide two weeks’ notice upon commencing and returning from compassionate care leave. While Manitoba also requires two weeks’ notice, they provide an exception to employees if circumstances do not allow the full two weeks’ notice. In comparison, Ontario, Quebec, New Brunswick, Nova Scotia and the Northwest Territories only require the employee to provide notice as soon as reasonably possible, sometimes alongside a medical certificate. Due to the unexpected circumstances surrounding compassionate care leave, some jurisdictions including Saskatchewan, Prince Edward Island, Yukon, Nunavut and the federal jurisdiction do not require any notice to take compassionate care leave. In recognition of the personal or family emergencies that prompt employees to take compassionate care leave, Alberta is considering reducing the amount of notice required while maintaining the need to provide medical documentation.

New Leaves Employees may need to take time off work occasionally to attend to family responsibilities or because of illness or bereavement. While employers are generally supportive of giving employees time off in these types of circumstances, most provinces have legislated job protection for employees for specific types of short term leaves. Alberta is the only province in Canada that does not legislate any type of personal or family emergency leave that is short-term. This gap can put vulnerable workers at risk of losing their job for circumstances beyond their control. Alberta is considering adding a new type of unpaid job-protected leave which would support employees in addressing personal situations, such as bereavement, personal illness or injury and family responsibilities.

Employment Standards Code Stakeholder Consultations

Discussion Paper For use at in person consultation sessions

Youth Employment Youth under 18 Young workers play an important role in Alberta’s workforce and employment opportunities enable young workers to gain valuable work experience to advance their personal and professional pursuits. It is understood that employment rules for youth under the age of 18 should balance the need to help them develop work experience while allowing them to continue to gain an education and participate in other activities to support their overall well-being. Canada has ratified the International Labour Organization (ILO) Convention 138 (C138), or the Minimum Age Convention, 1973. Once a convention has been ratified by the Canadian government, the provinces and territories must be able to comply with its requirements. For Alberta to comply with this convention, it will need to amend some elements of its youth employment legislation. In recognition of the federal government’s commitment to uphold Convention 138, there is a need to further restrict the ability for youth under the age of 15 to work. In particular, the goal is to ensure the types of jobs worked by youth between 13 to 15 years is non-hazardous to a young person’s health, well-being or education. Limiting the employment of youth under the age of 13 to very limited circumstances such as in the entertainment or arts industries is also required to comply with this Convention.

What the Law says The Employment Standards Code (Code) has special rules for employees under the age of 18. These rules are in place to protect the health and safety, well-being and education of these youth. An employee who is 16 years of age or less cannot be employed during school hours, unless the employee is enrolled in an off-campus education program provided under the Education Act or if the student has completed high school.

alberta.ca March 2017

Youth Employment Currently, the general minimum age of employment in the Code is 12. There are special rules for employees aged between 12 and 14 years of age, defined as “adolescents” under the Employment Standards Regulation (Regulation). Adolescents require parental consent and a permit from the Director of Employment Standards to be employed outside of school hours. The allowed occupations for adolescents are: o o o o o

Retail store delivery person; Office clerk or messenger; Retail store clerk; Delivery person for newspapers, flyers, or handbills; and An occupation approved by the Director of Employment Standards.

The employment cannot be injurious to the life, health, education or welfare of the adolescent. Adolescents can only work for 2 hours on a school day and 8 hours on a non-school day. Adolescents cannot work between 9:00 pm and 6:00 am. There are also restrictions on employees aged between 15 and 17 years of age, defined as “young persons” under the Regulation. Young persons require supervision by another employee 18 years of age or older when they are working between 9:00 pm and 12:01 am in the following occupations: o o o o

Food or beverage retail premises; Commodities, goods, wares, or merchandise retail premises; Gasoline, diesel fuel, propane or other petroleum or natural gas retail premises; Hotel, motel or overnight accommodation provider.

Young persons cannot work in the above occupations between 12:01am to 6:00am. Young persons can work in other occupations between 12:01am to 6:00am with parental consent and supervision by another employee 18 years of age or older.

Other Jurisdictions Generally, the provisions for the employment of youth under 18 are similar across Canada. The goal of employment standards in this area is to protect youth from harmful aspects of work and limit their work hours so as to allow the youth to receive an education. Parental permission and permits or other forms of official consent are often required to allow youth to work.

Employment Standards Code Stakeholder Consultations

Discussion Paper For use at in person consultation sessions

Administration and Enforcement Some thoughts on changes to the Employment Standards Code (Code) have centered around improving the efficiency and effectiveness of processes for dealing with non-compliance and to address special situations where a variance from minimum standards might be appropriate. Some have argued for the creation of a progressive penalties system (where second or subsequent convictions result in more serious penalties) and for establishing criteria for the Director of Employment Standards to consider before a permit is issued. Government is considering making changes to the Code to improve compliance and strengthen enforcement processes, including amending the legislation to allow for administrative penalties for repeat offenses.

Administration and Enforcement Employees and employers benefit from a strong enforcement system which promotes greater understanding of employment standards and ensures that employees receive the benefits they are entitled to under the law. A stronger enforcement framework also levels the playing field for businesses by ensuring minimum standards are being provided by all employers. It is increasingly common that employees without workplace representation through a union rely on Employment Standards to resolve disputes with their employers and mediate solutions. With a strong reliance on Employment Standards to assist in resolving complaints, employees and employers often face long waiting times for complaints to be investigated and brought to resolution. Administration of the Code is handled by Employment Standards Officers who investigate complaints filed by employees. An Officer may find that the employee is owed money for wages, overtime pay, vacation pay, general holiday pay or termination pay. If it is determined monies are owed to the employee, and if the employer does not voluntarily pay this amount, the Officer can issue an Order of Officer for the amount owing. The Order of Officer is a legal direction directed at the employer. The Order of Officer can be appealed to an Umpire by the employee or the employer. Currently, Provincial Court Judges are designated as Umpires. If the Officer finds that the employee is not owed any money, the Officer issues a Decision of Officer. This can be appealed to the Director of Employment Standards.

alberta.ca March 2017

Administration and Enforcement Alberta’s employment standards enforcement system includes: investigation of employment standards complaints by Officers, prosecution and fines. If convicted the current fine maximums are $50,000 for an individual and $100,000 for a corporation. There are no minimum fines. Some stakeholders have suggested that penalties for employment standards violations should be progressive, meaning that second or subsequent convictions would result in more serious penalties. Currently, Alberta’s employment standards’ enforcement framework has limited ability to deal with repeat offenders and uncooperative employers or employees due to a lack of proportionality or progression in fines and penalties. Some jurisdictions, including British Columbia, Manitoba, Ontario and the Yukon currently use administrative penalties as an enforcement tool. Administrative penalties are typically monetary penalties that can be applied with respect to contraventions of legislation or regulations, and are generally subject to appeal. Recently, Alberta’s Occupational Health and Safety program introduced a ticketing and administrative penalties system to promote compliance with respect to health and safety regulations. There are several elements that can vary in a system of administrative penalties, including whether the penalty is mandatory or optional, progressive or individual, and stacking or limited: o Mandatory penalties – automatically accompany a notice of contravention; o Optional penalties – decided on a case-by-case basis, sometimes according to the severity of the offence; o Progressive penalties – increase with repeat offences within a specific time frame; o Individual penalties – applied at the same amount, regardless of the number of offences; o Stacking penalties – multiplied according to the number of employees affected; and o Limited penalties – treated as a single violation, regardless of the number of employees affected. To support timely resolutions where an employer has been found to be non-compliant and to enhance employment standards’ ability to deal with serious or repetitive infractions of the Code, Alberta is considering adopting a progressive system of administrative penalties.

Permits Another administrative issue involves the Director of Employment Standards’ ability to grant permits. Currently, there are a number of specific circumstances when the Director can grant permits. Such circumstances include extending the time period to take banked overtime and authorizing extended hours of work beyond the 12-hour limit, as well as broader permitting authority to allow the Director to approve a scheme of employment which varies from the provisions under the Code. To ensure the needs of employees are considered as well, permit applications must be submitted with documentation of employee support, such as a petition or

Administration and Enforcement letter of support from affected unions. While permits provide flexibility for unique work situations, they also create an exception to minimum standards. For example, a permit allowing extended hours of work may be granted in situations where an employer needs to complete some work that is highly time or weather dependent – such as moving large pieces of equipment before spring thaw. Due to the time-sensitivities, the Director may issue a permit allowing extended hours of work for a limited period of time to allow the work to be completed. After the urgency has passed, the permit expires and the employer returns to normal operations within the minimum standards parameters of the code. There are a number of potential opportunities to improve consistency and reduce administrative burden in the permitting system, such as extending the period to bank overtime before a permit is required, transitioning long-standing industry permits to regulation, and establishing criteria for the Director of Employment Standards to review permits. Currently, overtime can be banked for three months in Alberta before it must be paid out to the employee or used as time in-lieu of payment. Employers must apply for a permit from the Director to extend this time to six months. As these permits are generally approved, particularly since documentation of employee support must accompany the application, this process adds to the administrative burden of employers. In some cases, employers are applying for permits on an annual basis as the nature of their operations have not changed and are unlikely to change in the future. In these types of situations where a change is required on a more permanent basis it may be more appropriate to create industry specific regulations. This would reduce the administrative burden on employers in situations where unique work arrangements are needed on a long-term basis. For permits relating to adolescent employment, the Employment Standards directly provides a copy of the approved permit to the affected employees. For other permits, including those relating to daily or weekly hours of work, the onus is on the employer to provide a copy of the permit to all affected employees. Transitioning industry-wide permits to the regulation may serve to improve the transparency of the current permitting process for affected employees. Applications for permits are considered purely on a case-by-case basis, an approach which relies on the discretion of the presiding Director of Employment Standards at the time of application. Establishing criteria within the legislation for the Director to review permits may improve consistency and transparency for employers and employees. Examples of permit criteria may include ensuring the majority of affected employees support the proposed terms of the permit and verifying that the employer does not have a history of employment standards violations. For permits concerning youth employment, permit criteria may include parental consent, ensuring that the education of the child will not be interfered by the conditions of the permit, and verifying that the employer is not listed on any Child Abuse Registry.