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Federal bill proposes expanded bereavement and pregnancy loss leaves, enhances rights for adoptive parents

On Nov. 30, 2023, the federal government completed the first reading of Bill C-159, Fall Economic Statement Implementation Act, 2023 (the “Bill”). Within the Bill are proposed changes to the Canada Labour Code (the “CLC”) and the Employment Insurance Act (the “EIA”).

The proposed amendments

Leave related to pregnancy loss and bereavement leave

The Bill proposes to add provisions to the CLC that would add a new leave related to pregnancy loss.

Such a leave would be for situations in which an employee’s pregnancy, or the pregnancy of their spouse or common-law partner, does not result in a live birth. The leave would also apply in situations where an employee was “intended to be the legal parent of the child that would have been born had another person’s pregnancy resulted in a live birth.”

If the pregnancy involved multiples (e.g., twins), the employee may only take one leave of absence for the pregnancy, but is entitled to take such leave if there was a pregnancy loss of at least one of the multiples.

The leave would be for a period of up to eight weeks if it involved a stillbirth, or for three days in any other case. The term “stillbirth” would be defined by the CLC.

If the employee has worked for at least three continuous months, the first three days of the leave will be paid at the regular rate of wages.

Bereavement leave

The Bill also proposes to amend and add provisions related to bereavement leave under the CLC.

Proposed new provisions would require employees to provide a notice in writing as soon as possible for any changes to the length of the leave that they intend to take. If the leave is for more than four weeks, the notice of the change in the length of the leave should be provided at least four weeks in advance, unless there is a valid reason as to why that cannot be done. If the employee does not provide that four week notice and is looking to shorten their leave, the employer may postpone their return for a period of up to four weeks.

The Bill would also add provisions that would give an employee on bereavement leave:

• The entitlement to be informed of employment opportunities (e.g., promotions, training opportunities) that arise while they are on leave.
• The entitlement to be reinstated in the same position that they held when they began their leave, or a comparable position, would also be added.
• The right to have their pension, health, disability benefits, and seniority continue to accumulate during the leave.

Employers would be prohibited from retaliating against employees who take bereavement leave. This would include considering such a leave as a factor in promotion or training decisions.

Measures related to placement or arrival of children

The Bill proposes to add a 15-week benefit entitlement under the EIA for people who adopt children, or where one or more newborn children are placed into a person’s care where the individual who gave birth was not intended to be the parent (e.g., surrogacy).

These benefits are eligible to begin the earlier of five weeks before the placement of the child is expected to happen, or the week in which the placement actually happens. The benefit entitlement continues no longer than 17 weeks after the placement actually happens.

If two people make claims for this benefit with respect to the same child or children, the 15 weeks of benefits will be divided between them.

The Bill would also make a corresponding amendment to the CLC, which would create a “Leave for Placement of Child.”

This leave would be for a period of up to 16 weeks. It would begin no earlier than six weeks before the estimated date of the placement, and end no later than 17 weeks following the actual placement.

The total amount of leave that may be taken by one employee under both the “Leave for Placement of Child” and “Parental Leave” shall not exceed 77 weeks. However, the total amount taken under these leaves by more than one employee shall not exceed 85 weeks.

Lessons for employers

The proposed amendments to the CLC and the EIA are not finalized and may still be revised. However, federally regulated employers will want to pay attention to whether such legislation passes and comes into force as the proposed changes introduce new employer obligations and new employee entitlements.

John Hyde is the managing partner at Hyde HR Law in Toronto. He advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiation, arbitrations, wrongful dismissal defence and human rights.