Canada Labour Code (R.S.C., 1985, c. L-2)

Marginal note:Regulations

238.2 The Governor in Council may make regulations for the purposes of this Division including regulations prescribing factors to consider in determining if an expense is or is not work-related and prescribing factors to consider in determining if an expense is or is not reasonable.

DIVISION XIIIMedical Leave

Marginal note:Entitlement to leave

• 239 (1) Every employee is entitled to and shall be granted a medical leave of absence from employment of up to 27 weeks as a result of

  • (a) personal illness or injury;

  • (b) organ or tissue donation;

  • (c) medical appointments during working hours; or

  • (d) quarantine.

• (1.1) [Repealed, 2021, c. 23, s. 344]

• Marginal note:Leave with pay

  (1.2) Subject to subsection (1.21) and the regulations, an employee earns, as of the first day on which this subsection applies to the employee,

  • (a) after completing 30 days of continuous employment with an employer, three days of medical leave of absence with pay; and

  • (b) following the period of 30 days referred to in paragraph (a), at the beginning of each month after completing one month of continuous employment with the employer, one day of medical leave of absence with pay.

• Marginal note:Maximum of 10 days

  (1.21) Subject to the regulations, an employee is entitled to earn up to 10 days of medical leave of absence with pay in a calendar year.

• Marginal note:Rate of wages

  (1.3) Each day of medical leave of absence with pay that an employee takes must be paid at their regular rate of wages for their normal hours of work, and that pay is for all purposes considered to be wages.

• Marginal note:Annual carry forward

  (1.4) Subject to the regulations, each day of medical leave of absence with pay that an employee does not take in a calendar year is to be carried forward to January 1 of the following calendar year and decreases, by one, the maximum number of days that can be earned in that calendar year under subsection (1.21).

• Marginal note:Division of leave with pay

  (1.5) The medical leave of absence with pay may be taken in one or more periods. The employer may require that each period of leave be of not less than one day’s duration.

• Marginal note:Certificate

  (2) The employer may, in writing and no later than 15 days after the return to work of an employee who has taken a medical leave of absence of at least five consecutive days, require the employee to provide a certificate issued by a health care practitioner certifying that the employee was incapable of working for the period of their medical leave of absence.

• Marginal note:Notice to employer

  (3) If an employee intends to take a medical leave of absence, they must give written notice to the employer of the day on which the leave is to begin and the expected duration of the leave at least four weeks before that day, unless there is a valid reason why that notice cannot be given, in which case the employee must provide the employer with written notice as soon as possible.

• Marginal note:Change — in length of leave

  (4) An employee must provide the employer with written notice of any change in the length of their medical leave of absence as soon as possible.

• Marginal note:Employment opportunities

  (5) An employee is entitled, on written request, to be informed in writing of every employment, promotion or training opportunity that arises during the period when the employee is on a medical leave of absence under this Division and for which the employee is qualified, and on receiving that request, the employer must provide the information to the employee.

• Marginal note:Prohibition

  (6) Subject to subsection (7), an employer is prohibited from dismissing, suspending, laying off, demoting or disciplining an employee because the employee intends to take or has taken a medical leave of absence or taking such an intention or absence into account in any decision to promote or train the employee.

• Marginal note:Exception

  (7) An employer may assign to a different position, with different terms and conditions of employment, any employee who, after a medical leave of absence, is unable to perform the work performed by the employee prior to the absence.

• Marginal note:Benefits continue

  (8) The pension, health and disability benefits and the seniority of an employee who is absent from work due to medical leave under this Division accumulate during the entire period of the medical leave of absence.

• Marginal note:Contributions by employee

  (9) If contributions are required from an employee in order for the employee to be entitled to a benefit referred to in subsection (8), the employee is responsible for and must, within a reasonable time, pay those contributions for the period of any medical leave of absence unless, at the commencement of the absence or within a reasonable time after, the employee notifies the employer of the employee’s intention to discontinue contributions during that period.

• Marginal note:Contributions by employer

  (10) An employer who pays contributions in respect of a benefit referred to in subsection (8) must continue to pay those contributions during an employee’s medical leave of absence in at least the same proportion as if the employee were not absent, unless the employee does not pay the employee’s contributions, if any, within a reasonable time.

• Marginal note:Failure to pay contributions

  (11) For the purposes of calculating the pension, health and disability benefits of an employee in respect of whom contributions have not been paid as required by subsections (9) and (10), the benefits do not accumulate during the medical leave of absence and employment on the employee’s return to work is deemed to be continuous with employment before the employee’s absence.

• Marginal note:Deemed continuous employment

  (12) For the purposes of calculating benefits, other than benefits referred to in subsection (8), of an employee who is absent from work due to medical leave under this Division, employment on the employee’s return to work shall be deemed to be continuous with employment before the employee’s absence.

• Marginal note:Regulations

  (13) The Governor in Council may make regulations

  • (a) defining terms for the purposes of this Division, including “regular rate of wages” and “normal hours of work”;

  • (b) modifying subsection (1.2), (1.21) or (1.4) if, in the opinion of the Governor in Council, employees or classes of employees will, despite the modification, earn periods of medical leave of absence with pay that are substantially equivalent to the period provided for in subsection (1.21); and

  • (c) providing for employees or classes of employees to earn periods of medical leave of absence with pay other than in accordance with subsection (1.2) if, in the opinion of the Governor in Council, the periods of medical leave of absence with pay are substantially equivalent to the period provided for in subsection (1.21).

• Marginal note:Application of section 189

  (14) Section 189 applies for the purposes of this Division.

239.01 [Repealed, 2021, c. 26, s. 24]

DIVISION XIII.1Work-related Illness and Injury

Marginal note:Prohibition

• 239.1 (1) Subject to subsection (4) and to the regulations made under this Division, no employer shall dismiss, suspend, lay off, demote or discipline an employee because of absence from work due to work-related illness or injury.

• Marginal note:Employer’s obligation

  (2) Every employer shall subscribe to a plan that provides an employee who is absent from work due to work-related illness or injury with wage replacement, payable at an equivalent rate to that provided for under the applicable workers’ compensation legislation in the employee’s province of permanent residence.

• Marginal note:Return to work

  (3) Subject to the regulations, the employer shall, where reasonably practicable, return an employee to work after the employee’s absence due to work-related illness or injury.

• Marginal note:Exception

  (4) An employer may assign to a different position, with different terms and conditions of employment, any employee who, after an absence due to work-related illness or injury, is unable to perform the work performed by the employee prior to the absence.

• Marginal note:Benefits continue

  (5) The pension, health and disability benefits and the seniority of an employee who is absent from work due to work-related illness or injury shall accumulate during the entire period of the absence.

• Marginal note:Contributions by employee

  (6) Where contributions are required from an employee in order for the employee to be entitled to a benefit referred to in subsection (5), the employee is responsible for and must, within a reasonable time, pay those contributions for the period of any absence due to work-related illness or injury unless, at the beginning of the absence or within a reasonable time thereafter, the employee notifies the employer of the employee’s intention to discontinue contributions during that period.

• Marginal note:Contributions by employer

  (7) An employer who pays contributions in respect of a benefit referred to in subsection (5) shall continue to pay those contributions during an employee’s absence due to work-related illness or injury in at least the same proportion as if the employee were not absent, unless the employee does not pay the employee’s contributions, if any, within a reasonable time.

• Marginal note:Failure to pay contributions

  (8) For the purposes of calculating the pension, health and disability benefits of an employee in respect of whom contributions have not been paid as required by subsections (6) and (7), the benefits shall not accumulate during the absence, and employment on the employee’s return to work shall be deemed to be continuous with employment before the employee’s absence.

• Marginal note:Deemed continuous employment

  (9) For the purposes of calculating benefits, other than benefits referred to in subsection (5), of an employee who is absent from work due to work-related illness or injury, employment on the employee’s return to work shall be deemed to be continuous with employment before the employee’s absence.

• Marginal note:Regulations

  (10) The Governor in Council may make regulations for carrying out the purposes of this Division and, without restricting the generality of the foregoing, may make regulations

  • (a) for determining the duration of the employer’s obligation under subsection (3);

  • (b) providing terms and conditions applicable to the employer under subsections (1) and (3) in the event of any termination of employment, lay-off or discontinuance of a function in an industrial establishment; and

  • (c) providing for any other terms and conditions respecting the application of subsection (3).

• Marginal note:Application of section 189

  (11) Section 189 applies for the purposes of this Division.

DIVISION XIII.2Long-term Disability Plans

Marginal note:Employer’s obligation

• 239.2 (1) Every employer that provides benefits to its employees under a long-term disability plan must insure the plan with an entity that is licensed to provide insurance under the laws of a province.

• Marginal note:Exception

  (2) However, an employer may provide those benefits under a long-term disability plan that is not insured, in the circumstances and subject to the conditions provided for in the regulations.

Marginal note:Regulations

239.3 The Governor in Council may make regulations respecting long-term disability plans, including regulations

• (a) specifying what constitutes a long-term disability plan; and

• (b) specifying the circumstances and conditions referred to in subsection 239.2(2).

DIVISION XIVUnjust Dismissal

Marginal note:Complaint

• 240 (1) Subject to subsections (2) and 242(3.1), a person who has been dismissed and considers the dismissal to be unjust may make a complaint in writing to the Head if the employee

  • (a) has completed 12 consecutive months of continuous employment by an employer; and

  • (b) is not a member of a group of employees subject to a collective agreement.

• Marginal note:Limitation

  (1.1) A person shall not make a complaint under subsection (1) if they have made a complaint that is based on substantially the same facts under either subsection 246.1(1) or 247.99(1), unless that complaint has been withdrawn.

• Marginal note:Time for making complaint

  (2) Subject to subsection (3), a complaint under subsection (1) shall be made within ninety days from the date on which the person making the complaint was dismissed.

• Marginal note:Extension of time

  (3) The Head may extend the period set out in subsection (2)

  • (a) if the Head is satisfied that a complaint was made in that period to a government official who had no authority to deal with the complaint but that the person making the complaint believed the official had that authority; or

  • (b) in any circumstances that are prescribed by regulation.

Marginal note:Reasons for dismissal

• 241 (1) If an employer dismisses a person described in subsection 240(1), the person who was dismissed or the Head may make a request in writing to the employer to provide a written statement giving the reasons for the dismissal, and any employer who receives such a request must provide the person who made the request with such a statement within 15 days after the request is made.

• Marginal note:Head to assist parties

  (2) On receipt of a complaint made under subsection 240(1), the Head must endeavour to assist the parties to the complaint to settle the complaint.

• Marginal note:Complaint not settled within reasonable time

  (3) If a complaint is not settled under subsection (2) within the period that the Head considers to be reasonable in the circumstances, the Head must, on the written request of the person who made the complaint that the complaint be referred to the Board, deliver to the Board the complaint made under subsection 240(1), any written statement giving the reasons for the dismissal provided under subsection (1) and any other statements or documents that the Head has that relate to the complaint.

• Marginal note:Notice

  (4) If the person who made the complaint does not reply to a written communication from the Head within a period that the Head considers to be reasonable in the circumstances and a period of at least 30 days, or any longer period that may be prescribed by regulation, have elapsed from the day on which the complaint was made, the Head may give written notice to the person who made the complaint that they have the period of 30 days, or any longer period that may be prescribed by regulation, set out in the notice to make a written request that the complaint be referred to the Board.

• Marginal note:Time limit

  (5) Subject to the regulations, if the person who made the complaint does not, within the period set out in the notice, make a written request that the complaint be referred to the Board, the Head may deem the complaint to be withdrawn.