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

Marginal note:Prohibition

• 208 (1) Subject to subsection (2), no employer shall require an employee to take a leave of absence from employment because the employee is pregnant.

• Marginal note:Exception

  (2) An employer may require a pregnant employee to take a leave of absence from employment if the employee is unable to perform an essential function of her job and no appropriate alternative job is available for that employee.

• Marginal note:Length of leave

  (3) A pregnant employee who is unable to perform an essential function of her job and for whom no appropriate alternative job is available may be required to take a leave of absence from employment only for such time as she is unable to perform that essential function.

• Marginal note:Burden of proof

  (4) The burden of proving that a pregnant employee is unable to perform an essential function of her job rests with the employer.

Marginal note:Application

208.1 Regardless of the time at which an employee makes a request under section 204, the rights and obligations provided under sections 204 and 205 take precedence over the application of subsection 208(2).

Marginal note:Right to notice of employment opportunities

209 Every employee who intends to or is required to take a leave of absence from employment under this Division is entitled, on written request therefor, to be informed in writing of every employment, promotion or training opportunity that arises during the period when the employee is on leave of absence from employment and for which the employee is qualified, and on receiving such a request every employer of such an employee shall so inform the employee.

Marginal note:Resumption of employment in same position

• 209.1 (1) Every employee who takes or is required to take a leave of absence from employment under this Division is entitled to be reinstated in the position that the employee occupied when the leave of absence from employment commenced, and every employer of such an employee shall, on the expiration of any such leave, reinstate the employee in that position.

• Marginal note:Comparable position

  (2) Where for any valid reason an employer cannot reinstate an employee in the position referred to in subsection (1), the employer shall reinstate the employee in a comparable position with the same wages and benefits and in the same location.

• Marginal note:Wages and benefits affected by reorganization

  (3) Where an employee takes leave under this Division and, during the period of that leave, the wages and benefits of the group of employees of which that employee is a member are changed as part of a plan to reorganize the industrial establishment in which that group is employed, that employee is entitled, on being reinstated in employment under this section, to receive the wages and benefits in respect of that employment that that employee would have been entitled to receive had that employee been working when the reorganization took place.

• Marginal note:Notice of changes in wages and benefits

  (4) The employer of every employee who is on a leave of absence from employment under this Division and whose wages and benefits would be changed as a result of a reorganization referred to in subsection (3) shall notify the employee in writing of that change as soon as possible.

Marginal note:Right to benefits

• 209.2 (1) The pension, health and disability benefits and the seniority of any employee who takes or is required to take a leave of absence from employment under this Division shall accumulate during the entire period of the leave.

• Marginal note:Contributions by employee

  (2) Where contributions are required from an employee in order for the employee to be entitled to a benefit referred to in subsection (1), the employee is responsible for and must, within a reasonable time, pay those contributions for the period of any leave of absence under this Division unless, before taking leave 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

  (2.1) An employer who pays contributions in respect of a benefit referred to in subsection (1) shall continue to pay those contributions during an employee’s leave of absence under this Division in at least the same proportion as if the employee were not on leave unless the employee does not pay the employee’s contributions, if any, within a reasonable time.

• Marginal note:Failure to pay contributions

  (3) 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 (2) and (2.1), the benefits shall not accumulate during the leave of 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

  (4) For the purposes of calculating benefits of an employee who takes or is required to take a leave of absence from employment under this Division, other than benefits referred to in subsection (1), employment on the employee’s return to work shall be deemed to be continuous with employment before the employee’s absence.

Marginal note:Effect of leave

209.21 Notwithstanding the provisions of any income-replacement scheme or any insurance plan in force at the workplace, an employee who takes a leave of absence under this Division is entitled to benefits under the scheme or plan on the same terms as any employee who is absent from work for health-related reasons and is entitled to benefits under the scheme or plan.

Marginal note:Status of certificate

209.22 A certificate issued by a health care practitioner under this Division is conclusive proof of the statements contained in it.

Marginal note:Prohibition

• 209.3 (1) No employer shall dismiss, suspend, lay off, demote or discipline an employee because the employee is pregnant or has applied for leave of absence in accordance with this Division or take into account the pregnancy of an employee or the intention of an employee to take leave of absence from employment under this Division in any decision to promote or train the employee.

• Marginal note:Prohibition

  (2) The prohibitions set out in subsection (1) also apply in respect of an employee who has taken a leave of absence under any of sections 206.3 to 206.9.

Marginal note:Regulations

209.4 The Governor in Council may make regulations

• (a) specifying the absences from employment that are deemed not to have interrupted continuous employment referred to in any of sections 206.6 to 206.8;

• (a.1) [Repealed, 2017, c. 20, s. 267]

• (a.2) prescribing the maximum number of periods of leave of absence that an employee may take under any of sections 206.3 to 206.5;

• (b) specifying what does, or does not, constitute an essential function of a job referred to in section 208;

• (c) specifying what does not constitute a valid reason for not reinstating an employee in the position referred to in subsection 209.1(2);

• (d) enlarging the meaning of care and support in subsections 206.3(1) and 206.4(1), and of critically ill adult and critically ill child in subsection 206.4(1);

• (e) prescribing other persons to be included in the meanings of family member in subsections 206.3(1) and 206.4(1);

• (e.1) adapting the terminology of the definitions of care, critically ill adult, critically ill child, family member and support in the regulations made under the Employment Insurance Act for the purposes of the definitions of those terms in subsections 206.3(1) and 206.4(1) of this Act;

• (f) prescribing offences to be excluded from the definition of crime in subsection 206.5(1) and prescribing other persons to be included in the definition of parent in that subsection;

• (g) prescribing shorter periods of consecutive months of continuous employment for the purposes of subsections 206.6(2), 206.7(2.1) and 206.8(1);

• (h) prescribing cases, other than the one set out in subsection 206.5(4), in which an employee is not entitled to a leave of absence and cases in which an employee is entitled to a leave of absence even if they are charged with the crime;

• (h.1) defining family violence for the purposes of section 206.7;

• (h.2) prescribing cases, other than those set out in subsection 206.7(3), in which an employee is not entitled to a leave of absence and cases in which, despite that subsection, an employee is entitled to a leave of absence under subsection 206.7(2);

• (h.3) prescribing documentation that the employer may request under any of subsections 206.6(4), 206.7(5) and 206.8(3);

• (i) prescribing documentation that the employer may require under subsection 207.3(4);

• (j) specifying the circumstances in which a leave under this Division may be interrupted; and

• (k) extending the period within which a leave under this Division may be taken.

Marginal note:Application of section 189

209.5 Section 189 applies for the purposes of this Division.

DIVISION VIIIBereavement Leave

Marginal note:Employee entitled

• 210 (1) Every employee is entitled to and shall be granted, in the event of the death of a member of their immediate family or a family member in respect of whom the employee is, at the time of the death, on leave under section 206.3 or 206.4, a leave of absence from employment of up to 10 days that may be taken during the period that begins on the day on which the death occurs and ends six weeks after the latest of the days on which any funeral, burial or memorial service of the deceased person occurs.

• Marginal note:Extension

  (1.1) At the request of the employee, the employer may extend, in writing, the period during which the leave of absence from employment may be taken.

• Marginal note:Division of leave

  (1.2) The leave of absence may be taken in one or two periods. The employer may require that any period of leave be of not less than one day’s duration.

• Marginal note:Notice to employer

  (1.3) Every employee who takes the leave of absence shall, as soon as possible, provide the employer with written notice of the beginning of any period of leave of absence and of the length of that leave.

• Marginal note:Bereavement leave with pay

  (2) If the employee has completed three consecutive months of continuous employment with the employer, the employee is entitled to the first three days of the leave with pay at their regular rate of wages for their normal hours of work, and such pay shall for all purposes be considered to be wages.

• Marginal note:Regulations

  (3) The Governor in Council may make regulations

  • (a) defining the expression “immediate family” for the purposes of subsection (1);

  • (b) defining the expressions “regular rate of wages” and “normal hours of work” for the purposes of subsection (2); and

  • (c) for the purposes of this Division, defining the absences from employment that shall be deemed not to have interrupted continuity of employment.

• Marginal note:Application of section 189

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

DIVISION IXGroup Termination of Employment

Marginal note:Definitions

211 In this Division,

joint planning committee

joint planning committee means a committee established pursuant to section 214; (comité mixte)

redundant employee

redundant employee means an employee whose employment is to be terminated pursuant to a notice under section 212; (surnuméraire)

trade union

trade union means a trade union that is certified under Part I to represent any redundant employee or that is recognized by an employer of any redundant employee as the bargaining agent for that employee. (syndicat)

Marginal note:Notice of group termination

• 212 (1) Any employer who terminates, either simultaneously or within any period not exceeding four weeks, the employment of a group of 50 or more employees employed by the employer within a particular industrial establishment, or of such lesser number of employees as prescribed by regulations applicable to the employer made under paragraph 227(b), shall, in addition to any notice required to be given under section 230, give notice to the Head, in writing, of his intention to so terminate at least 16 weeks before the date of termination of the employment of the employee in the group whose employment is first to be terminated.

• Marginal note:Copies of notice

  (2) A copy of any notice given to the Head under subsection (1) must be given immediately by the employer to the Minister of Employment and Social Development and the Canada Employment Insurance Commission and any trade union representing a redundant employee, and if any redundant employee is not represented by a trade union, a copy of that notice must be given to the employee or immediately posted by the employer in a conspicuous place within the industrial establishment in which that employee is employed.

• Marginal note:Contents of notice

  (3) A notice referred to in subsection (1) shall set out

  • (a) the date or dates on which the employer intends to terminate the employment of any one or more employees;

  • (b) the estimated number of employees in each occupational classification whose employment will be terminated; and

  • (c) such other information as is prescribed by the regulations.

• Marginal note:Where employer deemed to terminate employment

  (4) Except where otherwise prescribed by regulation, an employer shall, for the purposes of this Division, be deemed to have terminated the employment of an employee where the employer lays off that employee.