Dunphy Best Blocksom
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Call us: 403.265.7777
Dunphy Best Blocksom
Dunphy Best Blocksom
Mon - Fri: 8 am - 4:30 pm MDT
Call us: 403.265.7777

Changes to the Employment Standards Code

January 3, 2018 by DBB Law in Business, Employment Law, News

By Alex Norris and Rachel West


The Alberta Employment Standards Code, RSA 2000, c E-9 (the Code) sets out the minimum standards that apply to most employers and employees in the province. In 2017, the Alberta Government advised that it would be making a number of substantive changes to the Code.


On January 1, 2018, most of these changes came into effect. These changes are intended to update workplace laws to reflect modern realities for individuals and families in Alberta. However, they will also have a significant impact on employers. Please feel free to contact our office to discuss any of these issues in more detail.


1. Unpaid, Job-Protected Leaves

There are substantial changes to unpaid leave entitlements for employees. New leaves will be available and existing leaves will be expanded.


There are a variety of notice and eligibility requirements for these leaves that employers should be aware of, and we invite you to contact our employment team for more information if any of the below situations arise.


a) Changes to Existing Leaves

Compassionate Care Leave has increased from 8 weeks to 27 weeks. This change is designed to acknowledge realities of the “sandwich generation”—those who care for aging parents while also supporting their own children. Previously, only an employee with the primary responsibility of providing care to a gravely ill family member was entitled to take a leave.

Caregiver status has also been extended to include non-primary caregivers. For instance, siblings who share caregiving duties for an aging parent may all be eligible for leave. Additionally, employees will be permitted to take their leave in multiple weekly installments (rather than the current limit of two installments). This means an employee could conceivably take up to 27 weeks of leave in single weekly periods; essentially being on leave every other week.
Compassionate Care Leave has increased to 27 weeks
Maternity Leave has increased from 15 to 16 weeks to better align with federal employment insurance benefits. If a pregnancy terminates within 16 weeks of the estimated due date, the employee is still entitled to 16 weeks of maternity leave.Maternity Leave has increased to 16 weeks
Importantly, Parental Leave has also increased to align with federal employment insurance benefits. Birth and adoptive parents can now take up to 62 weeks of unpaid leave. This means an employee who is also entitled to Maternity Leave will be entitled to take up to 78 weeks of unpaid leave (16 weeks of Maternity Leave + 62 weeks of Parental Leave).

Note that an employee on leave may only be terminated during the leave period of the business is closed or suspended. This will make it more difficult for employers to make personnel reductions that impact employees on parental leave.
Parental Leave has increased to 62 weeks


b) New Leaves
In 2018, employees will be eligible for the following unpaid, job-protected leaves:


Personal and Family Responsibility LeaveFor personal sickness or short-term care of an immediate family member. This includes attending to personal emergencies and caregiving responsibilities related to education of a child.Up to 5 days
Long-Term Illness and Injury LeaveFor long-term personal sickness or injury (e.g. chronic health conditions). Employees will be required to provide a medical certificate as well as reasonable notice and an estimated date of return.Up to 16 weeks
Bereavement LeaveFor bereavement of a family member. Note: this leave is not expressly limited to bereavement of immediate family members.Up to 3 days
Domestic Violence LeaveFor employees addressing a situation of domestic violence. This includes attending to medical needs of the employee and/or child, obtaining victim services or counselling, relocating, and seeking legal or law enforcement assistance. The new Code lists acts that constitute domestic violence as well as individuals that may be considered perpetrators.Up to 10 days
Citizenship Ceremony LeaveFor attending a citizenship ceremony where the employee will receive a certificate of citizenship.Up to 1 half-day
Critical Illness of a ChildFor attending to a critically ill or injured child. Employees will be required to provide a medical certificate as well as the period of time required for care. Leave may be taken in multiple installments of not less than a week.Up to 36 weeks
Death or Disappearance of a ChildFor the death of a child (104 weeks) or disappearance of a child (52 weeks), both as a result of crime.Up to 104 weeks/52 weeks


These new leaves raise a variety of considerations:


  • The new and existing leaves are all unpaid but are also job-protected. This means an employer is not required to pay an employee while on leave, but the employer may not terminate the employee as a result of taking leave, or while the employee is on leave, or, in the case of maternity/parental leave, after giving notice of intention to take a leave. While an employee is on leave, the employer is obligated to keep that employee’s job open.
  • Employees may take multiple leaves throughout a single calendar year. For instance, an employee dealing with complex family issues may take up to 10 days in connection with a domestic violence situation, up to 5 days to address personal emergencies, and up to 36 weeks to care for a critically ill child.
  • Employees may avail themselves of these leaves each calendar year. For example, an employee with a chronic illness may take up to 16 weeks per year as a long term injury leave, every year.


c) Eligibility and Notice

Importantly, eligibility for the various job-protected leaves will also change. Previously, an employee was entitled to an unpaid leave after 1 year of employment. As of January 1, 2018, employees will only have to be employed for 90 days. This means a relatively new employee who meets eligibility requirements will be entitled to what could be a significant leave of absence (including a full maternity/parental leave of 78 weeks).Employees are entitled to leaves after 90 days
Employees are generally required to give notice before taking a leave (ranging from 1 to 4 weeks) but employees must, at the very least, give whatever is reasonable and practicable in the circumstances. Depending on the circumstances, an employee may not be able to give very much notice, if at all. All of this suggests that employers should carefully monitor their staffing needs to respond to potential absences. Employers will need to address the practical realities of having multiple employees taking a variety of leaves throughout the year.Notice of a leave must be provided at least as soon as is “reasonable and practicable” in the circumstances


2. Compressed Work Weeks and Overtime Agreements

Compressed work week arrangements are being replaced with “averaging agreements”. Employers and employees may agree to average work hours over a specified period for the purpose of determining overtime eligibility. An averaging agreement must:


  • Be in writing;
  • Specify a start and end date (for a term of not more than 2 years);
  • Specify the averaging period (up to 12 weeks), as well as the overtime hour thresholds per day (up to 12 hours/day) and per week (up to 44 hours/week);
  • Specify how overtime pay (or time off in lieu) will be calculated; and
  • Be provided to all affected employees, or a copy must be posted online and in the workplace.


Notably, such an agreement will require the support of a majority of the affected employees. Previously an employer could unilaterally impose a compressed work week. However, existing compressed work week arrangements (entered into prior to January 1, 2018) will remain valid until they expire or until January 1, 2019, whichever is earliest.A majority of employees must agree to an averaging agreement
Overtime arrangements have also changed. Previously, the Code permitted overtime agreements that banked overtime for 3 months. Overtime may now be banked for 6 months. Additionally, overtime banking must be calculated at 1.5x for overtime hours worked, rather than hour-for-hour (as it was permitted previously.Overtime must be banked for 6 months at 1.5x


3. Rest Periods

Employers have an active responsibility to provide rest periods, or breaks. Previously, employees were entitled to a 30 minute break when they worked more than 5 hours in a single shift. In 2018, employers must provide a 30 minute break for every 5 hours of work. This means that an employee who works 12 hours in a single shift must be given two separate 30 minute breaks. Further, an employer and employee may agree that each 30 minute break may be taken in two separate 15 minute breaks.Employers must provide a 30 minute break for every 5 hours worked


4. Holiday Pay and Vacation Pay

The previous requirement to have worked for 30 days will be removed, so all employees are now eligible for holiday pay upon commencing employment. Additionally, the distinction between “regular” and “non-regular” days of work has been eliminated. Previously, an employee would only receive holiday pay if the holiday fell on a day the employee normally would have worked.No qualifying period for holiday pay
In 2018, an employee will receive holiday pay regardless of whether they would have worked or not. For example, an employee who regularly works Tuesday to Friday will still receive holiday pay for a holiday that falls on a Monday. Holiday pay must be equal to at least the “average daily wage” of the employee. The rules for paying an employee who works on a holiday will not change. There are, however, changes to holiday entitlement upon termination. Please contact our office for more information about calculating holiday pay.No distinction between regular and non-regular days of work
Vacations and vacation pay have largely stayed the same. However, employees are now allowed to take vacation in half-day increments (previously the minimum was 1 full day).Vacation may be taken in half days


5. Deductions

Changes to the Code have broadened the list of circumstances in which an employer may not deduct from an employee’s wages. For instance, an employer is not permitted to make a deduction for employee damage (e.g. breaking dishes) or cash shortages (e.g. “dine-and-dash” situations).More restrictions on employer deductions


6. Youth Employment

Children 12 years of age and younger are only allowed to work in artistic endeavours approved by a permit. Youth aged 13 to 15 years of age are allowed to participate in artistic endeavours or perform “light work” without a permit, or other work with a permit, but absolutely no “hazardous work”. Youth aged 16 to 17 years old may be allowed to perform “hazardous work” with a permit.More restrictions on youth employment
Notably, the Alberta Government has yet to determine what will constitute “light work” or “hazardous work”. For this reason no changes are being made immediately. The Government anticipates that “light work” and “hazardous work” will be defined and regulated in the coming months. Please contact our employment team if you would like to be updated when this information becomes available.Restrictions will be further defined in coming months


7. Terminations and Temporary Layoffs

With respect to termination pay, employers are no longer permitted to require that accrued vacation, banked overtime, or holiday time be used during the termination notice period (unless the parties agree). Further, where an employee’s wages are variable, termination pay is to be calculated based an average of the employee’s wages during the previous 13 weeks in which the employee actually worked—which may or may not be the 13 weeks directly preceding the termination. Termination pay was formerly calculated based on the previous 3 months, regardless of how much the employee actually worked during that period.Calculations for termination pay have changed
Requirements for group terminations have also changed. Previously, an employer had to give termination notice to affected employees and to the Minister where more than 50 employees were terminated at a single location within a 4 week period. Now, the amount of notice required will vary depending on the size of the group to be terminated. Please contact our office for more information if you are contemplating a group termination.Varying notice requirements for group terminations
Finally, the rules for temporary layoffs have been adjusted. Under the Code, an employee may be temporarily laid off without pay, provided that the employee is recalled to work within a specified period. In 2018, employers are required to give notice in writing before a layoff period starts (with varying notice requirements based on the length of employment). Recall notices must also be in writing. Further, an employer will no longer be permitted to impose indefinite temporary layoffs. In 2018, an employer will be deemed to have terminated an employee if they have been laid off for more than 60 days in a 120-day period. However, employers should note that temporary layoffs come with significant risk of liability, even where there has been compliance with the Code. We would be pleased to discuss the various options and requirements for temporary layoffs to assist in ensuring that your risk of liability is reduced.Notice for temporary layoffs (and recalls) must be in writing and depends on length of service

Indefinite temporary layoffs no longer permitted


8. Administration and Enforcement

Previously, employers who did not comply with the Code or its regulations might have been subject to an order requiring compliance. In 2018, employers who fail to comply may be subject to a new system of administrative penalties (somewhat akin to Alberta’s Occupational Health and Safety Code).New system of administrative penalties
A contravention or failure to comply with the Code could result in a significant monetary penalty. Penalties may be ordered in the form of a one-time amount or a daily amount for each day or part of a day on which the contravention or failure to comply occurs or continues—up to $10,000 for each contravention or failure to comply. Orders against employers may be filed and will be enforceable as if they were judgments from a court.Possibility of significant monetary penalties and greater enforceability
This new penalty system suggests employers will be more seriously monitored and punished for non-compliance with employment standards. Notably, Employment Standards Officers will be authorized to direct that an employer conduct a self-audit for compliance with the Code. Further, employers could be subject to prosecution up to 2 years after contravention or non-compliance (previously the time period for prosecution was 1 year). This means an employee will have up to 2 years to make a complaint to Alberta Employment Standards for unpaid wages, vacation pay, etc.

In brief, employers should expect that compliance with the Code will be more vigorously investigated and enforced, and non-compliance will be more vigorously prosecuted.
Employers may be subject to prosecution for up to 2 years after the contravention


Final Thoughts

If you are an employer, we strongly advise that you review your policies and practices to ensure that they meet the new requirements. Keep in mind that the standards provided for in the Code are the minimum standards that all employers in Alberta must meet (unless they are federally regulated or subject to collective agreements). If you have a policy or practice in place that does not comply with the new Code, you may be at risk of a complaint or enforcement proceedings.


We invite you to contact the employment team at Dunphy Best Blocksom LLP if you have any questions about these changes or about your workplace generally. We would be happy work with you to ensure that your workplace is compliant with the new Code, and to assist you in limiting any liabilities that may flow from these changes.