Vol. 151, No. 23 — November 15, 2017
SI/2017-68 November 15, 2017
BUDGET IMPLEMENTATION ACT, 2017, NO. 1
Order Fixing December 3, 2017 as the Day on which Division 11 of Part 4 of the Act Comes into Force
P.C. 2017-1293 October 26, 2017
Her Excellency the Governor General in Council, on the recommendation of the Minister of Employment and Social Development and the Minister of Labour, pursuant to section 269 of the Budget Implementation Act, 2017, No. 1, chapter 20 of the Statutes of Canada, 2017, fixes December 3, 2017 as the day on which Division 11 of Part 4 of that Act comes into force, other than sections 257, 258 and 268.
(This note is not part of the Order.)
Pursuant to section 269 of the Budget Implementation Act, 2017, No. 1, chapter 20 of the Statutes of Canada, 2017 (BIA 2017), this Order fixes December 3, 2017, as the date on which Division 11 of Part 4, including Schedule 2 of that Act, comes into force (with the exception of sections 257, 258, and 268).
The objective of the Order is to fix December 3, 2017, as the day of the coming into force of the amendments to the Employment Insurance Act (EI Act) and the Canada Labour Code (Code), as set out in Division 11 of Part 4 of BIA 2017 (with the exception of sections 257, 258 and 268). Consequential amendments to the Employment Insurance Regulations (EI Regulations) and Employment Insurance (Fishing) Regulations (Fishing Regulations) come into force on the same day on which the amendments to the EI Act and the Code come into force.
These amendments provide for a new benefit and unpaid leave to care for a critically ill adult, as well as other amendments to the Employment Insurance (EI) maternity and caregiving benefits and related leaves for the implementation of this enhanced flexibility. They also provide the option for eligible parents to select 35 or 61 weeks of EI parental benefits and increase the maximum duration of parental leave under the Code from 37 to 63 weeks.
The EI Act currently includes two separate caregiving benefits — the Compassionate Care Benefit and the Parents of Critically Ill Children Benefit. The Compassionate Care Benefit provides up to 26 weeks of benefits for the care of a seriously ill family member. The Parents of Critically Ill Children Benefit provides up to 35 weeks of benefits to provide care or support to a critically ill child.
In addition, EI maternity benefits provide up to 15 weeks of benefits to eligible mothers who are pregnant, or who have recently given birth, to support their recovery.
EI Parental Benefits are intended to provide temporary income support to parents who take time away from work to care for their newborn or newly adopted children. Parental benefits may be shared by EI eligible parents for a total of 35 weeks.
The Code provides employees of the federally regulated private sector with the right to take unpaid job protected leaves of absence — including maternity leave, parental leave, compassionate care leave and leave related to critical illness — if they wish to avail themselves of these EI benefits. Provinces and territories also provide for various leaves for provincially regulated employees under their respective employment standards laws.
In Budget 2017, the Government committed to introduce more flexible EI maternity and parental benefits and more inclusive EI caregiving benefits, and to adjust the Code’s leave provisions accordingly. To fulfil this commitment, Budget 2017 announced a number of changes to the suite of EI caregiving benefits, including a new benefit for eligible family members to care for a critically ill adult, as well as changes to make EI maternity and parental benefits, and related leaves, more flexible.
In order to implement these changes, amendments to the EI Act were proposed as part of the BIA 2017, which will apply to eligible workers, fishers as well as eligible self-employed workers. Changes to the Code were also included to ensure that workers in the federally regulated private sector have the job protection they need while they are receiving EI caregiving, maternity and parental benefits.
These amendments to the EI Act and the Code are set out in Division 11 of Part 4 of the BIA 2017. The amendments to the EI Act can be found at sections 229 to 258 and Schedule 2, while changes to the Code are covered in sections 259 to 268. Pursuant to section 269 of the BIA 2017, Division 11 of Part 4 of the Act, other than sections 257, 258 and 268, comes into force on a day to be fixed by the Governor in Council, which may not be earlier than July 10, 2017. This Order in Council fixes the date of the coming into force of these amendments as December 3, 2017. Consequential amendments to the EI Regulations and the Fishing Regulations will come into force on the same day.
Pursuant to subsection 153(3) of the EI Act, the Regulations amending the Fishing Regulations must be tabled in the House of Commons within three sitting days after the day on which they are made. Subsection 153(4) of the Act provides that these Regulations come into force on the 10th sitting day after the day on which they are tabled, or any later day specified in the Regulations, unless a motion to repeal is filed with the Speaker of the House of Commons before the 10th sitting day. Additionally, the Minister of National Revenue is sponsoring related amendments to the Insurable Earnings and Collection of Premiums Regulations.
The Order brings the amendments to the EI Act and the Code into force on December 3, 2017. Consequential amendments to the EI Regulations and the Fishing Regulations come into force on the day on which these statutory amendments come into force. All provisions related to the Budget 2017 commitments to increase flexibility for EI special benefits and related leave provisions under the Code will be implemented simultaneously.
The changes to the suite of EI caregiving benefits, maternity and parental benefits and related leaves under the Code are intended to provide more inclusive and flexible support for families who need to balance caregiving responsibilities with work. These changes respond directly to the Government’s Budget 2017 commitments.
The above changes introduce, among other things, a new 15-week EI benefit — and a 17-week unpaid leave of absence under the Code — for eligible family members to care for a critically ill adult; expand eligibility to family members for the existing 35-week EI benefit and related leave for the care of critically ill children; and allow medical doctors and nurse practitioners to sign medical certificates for any of the EI caregiving benefits. The changes will also provide pregnant workers with earlier access to maternity benefits (up to 12 weeks before the week in which confinement is expected, instead of the current 8 weeks) and maternity leave, if they so choose; and provide a choice of 35 weeks (at 55% of weekly insurable earnings) or 61 weeks (at 33% of weekly insurable earnings) for the payment of parental benefits, while also increasing the maximum duration of unpaid parental leave under the Code from 37 to 63 weeks.
Consultations on the amendments to the EI Act and the Code contained in the BIA 2017 took place in fall 2016. This included online consultations on caregiver, maternity, and parental benefits and leaves, as well as a stakeholder roundtable. Stakeholders included parents, family caregivers, claimants who may benefit from more flexible leave and EI benefits to care for a critically ill family member, employers, labour organizations, academics, medical practitioners, and health advocates. Stakeholders shared a variety of positive views, as well as concerns about the proposed options including the ability of parents and caregivers, particularly women, to maintain workforce attachment. Parents are expected to welcome the additional flexibility and choice with regard to maternity and parental benefits and leaves.
Some employers, including small and medium businesses, and labour groups, raised concerns with a longer duration of parental benefits and leaves. They indicated that some companies may not be able to afford the direct and indirect costs associated with backfilling positions for employees who take longer leaves, recruitment and training costs, employer-based benefits for employees while on leave, as well as increased EI premiums.
Employers and labour organizations may also be affected as the legislative and regulatory amendments could have implications for employer supplementary benefits (top-ups) and collective bargaining agreements. Based on high-level analysis of the prevalence of employer top-ups in a representative sample of 216 collective bargaining agreements (CBA), 53% contained a specific EI top-up clause for maternity and/or parental leave, and 34% did not contain specific details in the CBA regarding a top-up for maternity or parental leave, but may have referenced the top-up in a separate benefit agreement. Employees in public administration were most likely to have top-ups, followed closely by employees in education, health and social sciences sectors.
There was strong support for a broader range of medical caregiving situations and harmonization of the list of eligible medical practitioners who could issue a medical certificate. Medical and health professionals advocated and expressed support for more inclusive caregiving options.
With regard to the changes to the EI Regulations and Fishing Regulations, stakeholder engagement was conducted through summer 2017, including employers, labour organizations, payroll and human resources professionals, medical practitioners, and health advocates.
Acting Director General
Employment Insurance Policy
Skills and Employment Branch
Employment and Social Development Canada
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