First Session, 45th General Assembly

53 Elizabeth II, 2004

BILL 38

AN ACT TO AMEND THE LABOUR STANDARDS ACT

Received and Read the First Time

Second Reading

Committee

Third Reading

Royal Assent

HONOURABLE JOAN BURKE

Minister of Human Resources, Labour and Employment

Ordered to be printed by the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would amend the Labour Standards Act to incorporate a

system of compassionate care leave for an employee to provide care or support to

a family member who has a serious medical condition with a significant risk of

death within 26 weeks.

The Bill would introduce the same

employment protection for employees who avail of the compassionate care leave

as exists for pregnancy, adoption and parental leave.

A BILL

AN ACT TO AMEND

THE LABOUR STANDARDS ACT

Analysis

PART VII.3 Added

PART VII.3

COMPASSIONATE

CARE LEAVE

43.13

Definitions

43.14 Entitlement to leave

43.15 Notice to employer

43.16 Employee protection

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

RSNL1990 cL-2

as amended

1. The Labour

Standards Act is amended by adding immediately after

section 43.12 the

following:

PART VII.3

COMPASSIONATE CARE LEAVE

Definitions

43.13 In

this

section

(a) "cohabiting partner" means either of

2 persons who are cohabiting and have cohabited continuously in a conjugal relationship

outside marriage for not less than one year;

(b) "family member", in relation to an

employee, means

(

i) a spouse or cohabiting partner of the

employee,

(ii) a child of the employee or of the employee's

spouse or cohabiting partner,

(iii) a parent of the employee or a spouse or common

law partner of the parent, and

(iv) any other person who is a member of a class of

persons prescribed for the purpose of this definition in the regulations; and

(c) "week" means the period between midnight on Saturday and midnight on the immediately

following Saturday.

Entitlement to

leave

43.14

(1) An

employee who has been employed by the same employer for at least 30 days is

entitled to a leave of absence without pay of up to 8 weeks to provide care or

support to a family member of the employee where a legally qualified medical

practitioner issues a certificate stating that the family member has a serious

medical condition with a significant risk of death within 26 weeks from

(

a) the day the certificate is issued, or

(

b) the day the leave began, if leave began before

the certificate was issued.

(2) The leave of absence under subsection (1) shall

be taken during the period

(

a) that starts with

(

i) the first day of the week in which the

certificate is issued, or

(ii) the first day of the week in which the

employee was absent, if the leave began before the certificate was issued and

the certificate was valid from any day in that week; and

(

b) that ends with the last day of the week in

which either of the following occurs:

(

i) the family member dies, or

(ii) the expiration of 26 weeks following the first

day of the week referred to in paragraph (a).

(3) Notwithstanding subparagraph (2)(b)(i), the

director may decide that, in exceptional circumstances, an employee shall be provided

with up to 3 additional days of unpaid leave immediately following the end of

the week in which the death of the family member occurred, and an employer

shall provide that leave.

(4) Where a shorter period than that referred to

in subsection (1) is prescribed for the purpose of subsection 23.1(5) of the Employment Insurance Act ( Canada ),

(

a) the certificate referred to in subsection

(1) has to state that the family member has a serious medical condition with a

significant risk of death within that period; and

(

b) that shorter period applies for the purpose of

subsection 2(b)(ii).

(5) When the shorter period referred to in subsection

(4) has expired in respect of a family member, no further leave may be taken

under this

Part in respect of that family member until the minimum number of weeks

prescribed for the purpose of subsection 12(4.3) of the Employment Insurance Act (Canada) has elapsed.

(6) A leave of absence under this

section shall be

taken in periods of at least one week in duration.

(7) The aggregate amount of leave that may be

taken by 2 or more employees under this

section in respect of the care or

support of the same family member shall not exceed eight weeks in the period

referred to in subsection (2).

Notice to

employer

43.15

(1) An

employee who intends to take a leave of absence under this Part shall give written

notice to his or her employer at least 2 weeks before the leave is to begin of

that intention, unless there is a valid reason why that notice cannot be given.

(2) An employee who gives notice under subsection

(1) shall include in that written notice to the employer the length of the

leave that the employee intends to take.

(3) Every employee who is taking a leave of absence

under this Part shall give at least 2 weeks written notice to the employer of

any change in the length of leave intended to be taken, unless there is a valid

reason why that notice cannot be given.

(4) Where the employer makes a written request, an

employee shall provide his or her employer with a copy of the medical practitioner's

certificate referred to in subsection 43.14(1).

(5) If an employer makes a request under

subsection (4), that request shall be made within 15 days of the employee's return

to work.

Employee protection

43.16

(1) An

employer shall not dismiss an employee or give notice of dismissal to an

employee because an employee intends to take, applies for or takes a leave of

absence under this Part.

(2) Where an employee is dismissed by his or her

employer contrary to subsection (1), the onus of proving that the reason for dismissal

is unrelated to the compassionate care leave rests with the employer.

(3) An employer shall reinstate an employee at the

are not less beneficial than those that subsisted before the leave began.

(4) Unless the employer and the employee otherwise

agree, a period of leave under this Part does not count towards the application

of the rights, benefits and privileges conferred by this Act upon an employee,

but the period worked upon resumption of employment after leave shall be

considered, for the purpose of this Act, to be continuous with the period

worked before the leave.

©Earl G. Tucker, Queen's Printer