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Justice Minister David Lametti

Ottawa moves to enact 10 paid sick days in federal private sector, ban intimidation of health workers

Friday, November 26, 2021 @ 3:25 PM | By Cristin Schmitz


The minority Liberal government has introduced a bill to criminalize the intimidation and obstruction of health-care workers and people seeking to access health services, as well as to mandate 10 days’ paid sick leave for workers in the federally regulated private sectors, such as interprovincial transport and banking.

After introducing Bill C-3 in the House of Commons Nov. 26, the government said it will engage “in consultations with federally regulated employers and workers towards the implementation of this legislation.”

According to a government backgrounder, there are about 18,500 employers in federally regulated industries, including federal Crown corporations, that together employ 955,000 people (about six per cent of all employees in Canada). Eighty-seven per cent of these people work in companies with 100 or more employees.

The government said it will also convene provinces, territories “and other interested stakeholders” to develop “a national action plan” to legislate paid sick leave across the country, “while respecting provincial-territorial jurisdiction and clearly recognizing the unique needs of small business owners.”

In addition to the proposed amendments to the Canada Labour Code, Bill C-3 would also amend the Criminal Code to create two new offences, banning “intimidation” and “obstruction access” to specifically protect health-care workers, those who assist them and persons seeking health services.

Justice Minister David Lametti

At a joint news conference Nov. 26, at which Minister of Labour Seamus O’Regan Jr. and Justice Minister David Lametti were joined by senior officials from a major union and associations representing doctors and nurses, who applauded the bill, Lametti said he was “disappointed” that it was necessary to enact new law to deal with the grave threats and harassment endured by health workers and by those accessing health services. “We’ve all seen the protests during the pandemic,” Lametti remarked. “Even this week, COVID-deniers were trying to stop children from receiving vaccinations. Imagine, trying to stop a child from receiving a potentially life-saving vaccine!”

The federal justice minister called such behaviour “unacceptable.” He stressed that no one should be intimidated for providing, or seeking, health care, and that everyone should be able to access the care they need without undue obstruction.

According to a government backgrounder, the new intimidation offence is meant to address circumstances where a health-care worker, or person seeking health services, is subject to “any intimidating conduct.” This could include threats, or other forms of violence, that are intended to provoke fear, to interfere with the duties of a health-care worker, or to impede a person from receiving health-care services.

The government said the proposed new specific “obstructing access” offence would prohibit obstructing any person from accessing health facilities.

This offence would not apply, however, where a person is peacefully protesting, or communicating information, such as on a picket line outside a health facility, even if that has “a minor impact “on the ability of others to access the facility.

Both offences would be hybrid, and punishable by a maximum penalty of 10 years’ imprisonment, when prosecuted by indictment for more serious cases. The government said the changes would respect Canadians’ freedom to voice their concerns and protest in a safe and peaceful manner, and ensure workers’ freedom to take labour action, consistent with the Canadian Charter of Rights and Freedoms.

Bill C-3 would also create aggravating factors for sentencing that would require courts to consider more serious penalties for offenders who target health-care workers engaged in their duties, or who impede others from obtaining health services.

More specifically, the bill itself states that the Criminal Code offences consist of:

Intimidation — health services

s. 423.‍2 (1) Every person commits an offence who engages in any conduct with the intent to provoke a state of fear in

(a) a person in order to impede them from obtaining health services from a health professional;

(b) a health professional in order to impede them in the performance of their duties; or

(c) a person, whose functions are to assist a health professional in the performance of the health professional’s duties, in order to impede that person in the performance of those functions.

Obstruction or interference with access

(2) Every person commits an offence who, without lawful authority, intentionally obstructs or interferes with another person’s lawful access to a place at which health services are provided by a health professional.

Defence

(4) No person is guilty of an offence under subsection (2) by reason only that they attend at or near, or approach, a place referred to in that subsection for the purpose only of obtaining or communicating information.

For this section, a “health professional” is defined as “a person who is entitled under the laws of a province to provide health services.”

With respect to the creation of new aggravating factors in sentencing, the summary in Bill C-3 speaks of adding as aggravating sentencing factors for “any offence” the “commission of an offence against a person who was providing health services and the commission of an offence that had the effect of impeding another person from obtaining health services.”

Bill C-3 would also amend the Canada Labour Code to, among other things: repeal the personal leave that an employee may take to treat their illness or injury; provide that an employee may earn and take up to 10 days of medical leave of absence with pay in a calendar year; and authorize the governor-in-council to make regulations to modify, in certain circumstances, the provisions respecting medical leave of absence with pay.

The government’s move to legally mandate paid sick leave of 10 days annually for workers in the federally regulated private sector would affect many industries, including interprovincial air, rail, road and marine transportation, banks, postal and courier services, among others.

The proposed legislation would amend medical leave under Part III of the Canada Labour Code to provide that:
  • employees are entitled to earn one day of medical leave with pay for each month of employment with an employer, up to a maximum of 10 days in a calendar year;
  • any day of medical leave with pay that an employee does not take in a calendar year would carry forward to Jan. 1 of the following calendar year, and would count toward the 10 days that can be earned in the new year; and
  • the maximum number of days of medical leave with pay that an employee could take in a calendar year would be 10.

The government said the Code currently provides employees in federally regulated industries with five leaves related to personal illness or injury, including:
  • Personal leave provides employees with up to five days of leave per year for personal illness or injury, family responsibilities, urgent matters concerning themselves or their families, or attending their citizenship ceremony. The first three days of this leave are paid, if the employee has completed three consecutive months of continuous employment with the employer. In order to avoid the duplication of leave provisions under the Code, the proposed legislation would remove “personal illness or injury” from the list of reasons for which an employee is entitled to take personal leave.
  • Medical leave provides employees with an unpaid leave of up to 17 weeks if they are unable to work due to personal illness or injury, organ or tissue donation, or medical appointments during working hours.
  • Work-related illness or injury leave provides employees the right to be absent from work for an indefinite period if they suffer a work-related illness or injury. Employers are required to subscribe to a plan that will replace the employee’s wages according to the workers’ compensation laws applicable in the employee’s province of permanent residence.
  • The leave of absence for members of the Reserve Force provides members of the Canadian Armed Forces Reserve Force with leave for as long as necessary to treat, recover from, or undergo rehabilitation for a physical or mental health problem that results from service in an operation or activity listed in the Code. While on leave, employees are entitled to various compensation programs provided by the government of Canada.

In March 2020, the Code was also amended to create the leave related to COVID-19. Prior to Nov. 20, 2021, this leave allowed employees to take unpaid, job-protected leave for up to four weeks if they were unable to work for reasons related to COVID-19, including if they have contracted, or might have contracted, COVID-19, and up to 42 weeks if they were unable to work because of caregiving responsibilities related to COVID-19.

The leave related to COVID-19 was designed to align with the Canada Recovery Sickness Benefit and the Canada Recovery Caregiving Benefit; the eligibility period for the benefits ended on Nov. 20, 2021, and the leave related to COVID-19 was repealed on the same day. The government, however, introduced Bill C-2 Nov. 24, 2021, to reinstate the leave and extend the eligibility period for those benefits until May 7, 2022.

If you have any information, story ideas or news tips for The Lawyer’s Dailyplease contact Cristin Schmitz at Cristin.schmitz@lexisnexis.ca or call 613 820-2794.