THE STANDING SENATE COMMITTEE ON SOCIAL AFFAIRS, SCIENCE AND TECHNOLOGY

EVIDENCE


OTTAWA, Monday, December 13, 2021

The Standing Senate Committee on Social Affairs, Science and Technology met with videoconference this day at 6:45 p.m. [ET] to study the subject matter of Bill C-3, An Act to amend the Criminal Code and the Canada Labour Code.

Senator Ratna Omidvar (Chair) in the chair.

[English]

The Chair: Welcome to this meeting of the Standing Senate Committee on Social Affairs, Science and Technology. I am Ratna Omidvar, senator from Ontario and chair of this committee.

The committee is continuing its examination of the subject matter of Bill C-3, An Act to amend the Criminal Code and the Canada Labour Code, which was introduced in the House of Commons on November 26, 2021. We have two panels of witnesses today. Our first witness is the Honourable Seamus O’Regan, P.C., M.P., Minister of Labour. Welcome, minister. He’s accompanied by Sandra Hassan, Deputy Minister of Labour; and Andrew Brown, Assistant Deputy Minister, Labour Program.

Thank you, minister, very much for attending our hearing. I will invite you to make your presentation. However, in order to keep us all on track, I want to share with you that you will have five minutes for your presentation. If you see me raising my hand, it means that you are close to the 10-second mark, to completion. I hope this helps us all to stay on time and prevents me from having to interrupt anyone, which I dislike a great deal.

The floor is yours, minister.

Hon. Seamus O’Regan, P.C., M.P., Minister of Labour: Thank you, chair and senators. I’d like to acknowledge that I am joining you from the island of Newfoundland, which is the traditional territory of the Beothuk and Mi’kmaq peoples.

I also thank you for inviting me to discuss this bill. This bill will be very important in supporting the health of our workers. It is a sad reality that, across Canada, some workers don’t have access to paid sick leave, which means that many workers can’t afford to stay home due to an illness. For some, missing paid days due to illness means not being able to make their mortgage or rent payment or deal with the many bills you need to pay to support your family. It is simply an unfair choice to impose on Canadian workers.

Despite the progress that the Government of Canada has made on the labour front, it is clear that the pandemic has exposed the gaps in our social safety systems. The time has come to close the gap on paid sick leave.

Currently, the Canada Labour Code provides employees in federally regulated industries with several unpaid leaves related to personal illness or injury, as well as three days of paid personal leave that could be used to treat an illness or injury. However, if we look at the statistics from 2019, Canadian workers took an average of 8.5 days of leave for illness and issues related to a disability, so it has become very clear that three days isn’t enough.

This legislation would amend the Canada Labour Code to provide 10 days of paid sick leave per year to workers in the federally regulated private sector. This is a change that will make a real difference in the lives of working Canadians. As of today, there are approximately 18,500 employers — employers — in federally regulated industries, and that together — all of it — represents over 950,000 workers.

[Translation]

The federally regulated sector employs millions of workers from a broad range of industries. It includes interprovincial air, rail, road and marine transportation, pipelines, banks and postal and courier services, among others. These are all industries people count on every day.

[English]

It is incumbent upon us, as the federal government, to support these workers. The bill before us today not only allows workers in these vital industries to stay home and rest when they are sick, it also prevents the spread of illness in the workplaces; specifically, it would amend Part III of the Canada Labour Code.

[Translation]

The first change aims to provide that, for each calendar year, employees would accumulate one day of paid leave per completed month of employment, up to a maximum entitlement of 10 days per calendar year.

[English]

The second change is to avoid duplicating paid leave provisions relating to illness or injury under the Canada Labour Code. These two changes would impact nearly 600,000 employees, specifically 582,700 in the federally regulated private sector, who do not currently have access to at least 10 days of paid sick leave.

Increased paid sick leave would support employees by protecting them in three ways.

[Translation]

First, workers’ incomes would be protected through sick leave — this means that workers would not have to choose between staying home to get well or getting paid.

Second, it would protect their jobs. Finally, it would protect workers’ health. More paid sick days would give them the chance to get well at home, and at the same time protect their co-workers in the workplace.

[English]

In addition, the government would like to see paid sick leave implemented across the country, in all sectors. To do that, we will discuss a plan to legislate sick leave across the country with provinces and territories. This will be done while respecting jurisdiction, keeping the unique needs of small business owners top of mind.

Currently, not every province and territory has paid sick leave, and that shouldn’t be the case. We have a responsibility to ensure all Canadians have access to paid sick leave. It is essential to Canada’s economic future. It will protect workers’ health, now and into the future.

Madam Chair, senators, as we finish the fight against COVID-19, a vital step toward Canada’s economic recovery is to ensure Canadians have access to paid sick leave. With this bill, the government is taking action to give workers the support they need. Hard-working Canadians right across the country are counting on us to make these necessary and important changes.

Thank you for your time.

The Chair: Thank you, minister. We will proceed to questions for senators.

As is our current practice, I would like to remind each senator that you have five minutes for your question and the answer. If you wish to ask a question, please signal the clerk with the raise-hand button. The first questions will be from Senator Bovey, deputy chair, from Manitoba.

Senator Bovey: Thank you, Mr. Minister, for being with us. It’s always a pleasure to get your insights. I thank you for them.

I have two questions. The first really comes out of the witness testimony we heard last time, and it has to do with the accumulation of the 10 days of sick leave, one day per month. The point was made that it doesn’t necessarily take 10 months for someone to have to get sick to be able to use those 10 days. The following question was raised: Why did you take that approach as opposed to having someone start with 10 days and then use them up? Get them at the front rather than have to build them to use them at the end. I’d like to start with that question, and then I have a follow-up if I may.

Mr. O’Regan: Thank you, senator. The notion was not for everyone to begin with 10 days but for it to be something you would accumulate over a given amount of time. Over the course of a year, as you worked further into the job, you would accumulate more days. With the argument put before us by you and by those you have heard from, in its application, these are areas where we would be open to suggestions, and I would say give it to me in writing so we can look at it.

Senator Bovey: It will come in writing.

Mr. O’Regan: I know it will. With this august group, I know you appreciate getting something in writing as opposed to a mere suggestion. We will want to have time to look at it with the officials to make sure it’s in keeping with the intentions of the legislation and that it’s practically applied. That is an area where we could drill down further.

Senator Bovey: I thank you for that. I appreciate it.

My second question is in regard to medical leave without pay where the employer may request a medical certificate only after a period of at least three days, but for medical leave with pay, the employer may require medical certification that the employee was incapable of working for any period. Why is a distinction being made between medical leave with pay and medical leave without pay in situations where employers request a medical certificate? Following that, do you think this could potentially influence employees’ decisions whether to take medical leave if we’re trying to get people to take medical leave when they’re ill so they do not, as you say, infect the workplace? I’d like your thoughts on how that balances out, the certificates with pay and without pay and why there are different rules.

Mr. O’Regan: I will speak briefly to this to give adequate time to my deputy, because I want her to support me in this answer.

Senator, the intention, as I stated in my opening remarks, is to ensure that workers do not hesitate for extraneous reasons, such as employment conditions or not being able to get paid, in a situation where they feel they may have symptoms of COVID. That is what we want to avoid. We don’t want there to be any hesitancy, and we want that worker to feel comfortable and protected in her ability to stay home so if there is any possibility that person has acquired COVID, it doesn’t spread into the workplace. That is the intent.

Let’s drill down on those things that we normally put in place to make sure systems aren’t being abused. Let’s be frank. We want to make sure that when people are taking medical leave, they are indeed taking medical leave, and one of the ways to ensure that is a medical certificate from a professional. Having said that, these are extraordinary circumstances — we’re in a pandemic — so we want to make sure we’re doing the right thing and relieving people of that hesitancy.

To answer your particular questions about medical certificates being required for paid and unpaid leave, I will go to my deputy.

Sandra Hassan, Deputy Minister of Labour, Employment and Social Development Canada: Thank you, minister. As you indicated, it’s about making sure that when leave is taken for medical reasons specifically, the employer is given the opportunity to check that. Under the current provisions of the Canada Labour Code, an employee has five days of personal leave, three of which can be used for medical reasons. It’s to ensure that the provisions are being used in keeping with the intent behind them.

Senator Patterson: Thank you, minister, for being here.

I have only five short minutes, so I would like to fire off three questions, which should not be a surprise to you and your office. I hope we can get brief and pointed responses to questions that are particularly important to me as the critic of the bill for the official opposition in the Senate.

First, do the 10 days of sick leave this bill proposes to establish form the floor, or are they stackable with whatever else employees may be entitled to through their employers? Should I stop, or do you want to hear the other two?

Mr. O’Regan: They form the floor.

Senator Patterson: That’s clear. Thank you very much.

Second, will employees be able to use this leave to attend addictions treatment and take mental health breaks?

Mr. O’Regan: That’s a very good question. Deputy, do you have an answer at the moment?

Ms. Hassan: Senator, excellent question. The provisions are intended to allow employees to take days off for the purpose of sick leave. Now, whether we’re talking about physical or mental health, the intent is certainly for an employee to use those days in either case. However, regarding the specific question about types of treatment, I’m not in a position at this point to answer that excellent question. However, the department will be preparing documentation for employers as well as stakeholders, and we certainly will be addressing that in the material. Thank you for that question.

Mr. O’Regan: I will add that I’m sensitive to the question, and I would want the answer to be a good one.

Senator Patterson: Thank you.

Finally, will this legislation apply to employees who are employed part-time on short contracts — that is six months less a day — or employed in the federal service through a human resources staffing agency? I would note they’re currently not entitled to the same benefits as full-time term or indeterminate employees.

Mr. O’Regan: Deputy, I will ask you to answer that question. It’s a good one.

Ms. Hassan: Thank you, senator. The Canada Labour Code provisions would apply to employees whether they are working full-time or part-time, so the provisions would apply as a function of the duration of the employment.

In regard to the second part of your question, the HR agencies, it will be important to look at the status of the employee. This legislation is applicable to employees under the federally regulated regime, and a person hired through an HR agency could potentially be covered under provincial law. Therefore, it will be a question of looking at each case to see whether the person is under federal regulation or provincial —

Senator Patterson: Thank you very much.

In light of your answers to Senator Bovey just now, minister, I would like to know: Are you considering amendments to this bill? Because that could mean we’re currently studying and considering a pre-study report on a bill that may change in substance by the time it’s officially before the Senate.

Mr. O’Regan: We’re looking at ways to make the bill better, with others. Yes, I think it’s incumbent upon us to do that.

Senator Patterson: Thank you.

[Translation]

Senator Verner: Thank you for being here this evening, minister. I will try to be brief, because several of us have questions for you tonight.

I would like to talk about small- and medium-sized businesses, which are very important in Canada and Quebec. As we know, the labour shortage is a major problem.

Workers should indeed benefit from paid leave when they are sick; this issue really needs to be addressed. However, what can be done to balance all this out?

Even though they are said to represent 6% of all businesses, federally regulated businesses will have a significant advantage over other small businesses that cannot afford to offer these 10 days off. The Canadian Federation of Independent Business suggested last week that the costs of this leave be offset to bring non-federally regulated businesses into the plan and give them the opportunity to offer it to employees. The costs could be reimbursed through tax credits or by reducing Canada Pension Plan contributions or employer EI premiums. That way, smaller businesses, which already have a lot of trouble finding workers, would not be at such a distinct disadvantage compared to the much more comprehensive and attractive program available to federally regulated employers.

[English]

Mr. O’Regan: Senator, thank you for the question.

I want to address the PBO report — the costing report on Bill C-3 that states there could be an increase to government revenue as a result of paid sick leave. That conclusion is drawn from the number of employees who don’t currently have access to paid sick leave now taking that sick leave and the tax revenue that would be generated. It doesn’t take into account the necessary engagement with employers and what their unique needs will be around implementing paid sick leave.

On the larger question of the cost, the last two years have shown us what the cost of not acting now could be: productivity loss, quarantine, shut downs and lockdowns. The economic cost of inaction is far greater. We can minimize the economic impact of the virus — or, as we have seen now, the Omicron virus and the concern that is generating within our government and around the world. We know what the biggest cost to the economy is, and that’s another shut down.

We are committed to convening provinces and territories to develop a national plan on this. As you point out, it’s not just about federal workers; it’s about strengthening the social safety net for all workers across Canada. We recognize that employers have unique needs, and we need to engage with stakeholders, employers and workers to make sure we get this implementation right. Much of this has to do with not just the health of our workers and of everyone but also the health of our economy. In this case, the two most definitely go hand in hand. We need to get it right. We need to get it done.

Deputy, is there another point you could add to that?

[Translation]

Ms. Hassan: Thank you for your question, senator. As the minister indicated, we are well aware that the impact may be different on small- and medium-sized businesses and we’re keeping that in mind. As the minister said, consultations will be held at a roundtable bringing together the federal, provincial and territorial governments. Of course, we will take these issues into consideration, and the goal is to provide similar benefits across the country. You have correctly identified the fact that all the provinces would offer less than what is proposed in Bill C-3.

[English]

The Chair: Thank you, Ms. Hassan. We have to go on to the next question.

I’m going to interject with a brief question of mine. The bill has no provision for the gathering of evidence. How will we know what the take-up is? How will we know which employers, sectors or regions see a take-up or not? Most importantly, how will we know without data whether minorities or Indigenous people are impacted differently from other groups? This is a question about data and disaggregating data. Thank you.

Mr. O’Regan: Senators, I beg your indulgence. I will ask my deputy to take this as I have to vote in the House at the moment.

Ms. Hassan: Thank you, senator, for your question. The Department of Employment and Social Development Canada and of labour will be monitoring the impact of these proposed changes in Bill C-3, and we will — as we do for other provisions in the Canada Labour Code — look at the impact on the various employers as well as employees.

The Chair: Thank you.

Senator Lankin: Minister, thank you very much for joining us here. Can I say right off the top that I am very supportive of this bill. There is no question that it’s an important piece of improvement to labour legislation, and it has been made absolutely critical that we understand the importance of it through this pandemic.

My questions were covered by Senator Bovey. The first one was about the policy of accruing sick days, and I appreciated your answer. I want you to know that I was working with the law clerk in the Senate today on such an amendment, so we will make sure that if there are any other senators on this committee doing that, we’ll compare notes and send them to the minister. I’m also aware that one of my other colleagues is working on an amendment around sick notes.

I want to make a comment to you. You spoke about consulting the stakeholders, about the business communities and about the differences between large and small employers, and that’s all very true. I think that, as you have continued to refine the pandemic response — like the most recent subsidies for hiring in certain industrial sectors — you’ve continued to refine and look for the sharper impact.

My concern about what people are suggesting — The Canadian Federation of Independent Business and others — about small business is that they make it sound like the sick days are additional dollars that wouldn’t have been paid out. In fact, these are permanent positions. Someone is working it — they’re being paid — and if they now, under this, are not working it, they’re being paid. The research shows us that the number of sick days workers take is much less significant than the 10 days on average.

I’m perplexed that even your bill, which is very positive, carries with it the stigma of people abusing sick leave. That’s not what the evidence suggests. Even the accrual suggests that way of thinking as well. I’d like to understand, from a policy perspective, is this the balance that you feel you need with the business community from the consultations you have done? Because I’ve seen some business comments that have been very supportive of this policy and have not raised that concern. I would like you to pursue your thinking on that a little bit, so we understand what was in your and the cabinet’s minds as you made that decision. Thank you very much.

Mr. O’Regan: Senator, thank you for the question, and I appreciated your comments. If there is any inference, it is certainly not that somehow days will be abused. It was certainly not our intention. What can I say? There is a common perception, but not necessarily rooted in facts, that days could be abused or abused en masse. I think we know that’s not the case.

We have a saying, which I would probably blunder right now in Newfoundland, about the “biggest sleeveen in the harbour.” That’s sometimes what we preoccupy ourselves with — the biggest sleeveen, which is that person in the community who might be sly and taking advantage of systems, as it were. They are the exception, not the rule. Most people are very honourable in how they avail of these sick days and other advantages — I shouldn’t say “advantages” but other necessary items that are part of an employment contract, basically.

Bill C-3 would establish a minimum standard of 10 days, as I answered Senator Patterson in rapid-fire form. It establishes a minimum standard of 10 days of paid sick leave, but the proposed amendments wouldn’t override a more favourable arrangement that may be provided for in a collective agreement, nor would Bill C-3 add paid sick leave to another more favourable arrangement that would provide at least 10 days of paid sick leave.

Just to reiterate for senators as well — and maybe I didn’t make this clear off the top — we arrived at 10 days because that’s basically two weeks, two five-day work weeks. We’ve asked people, as you recall, to quarantine for two weeks, so that’s how we arrived at 10 days. That’s why 10 days, to us, was so essential, because it basically constituted two five-day work weeks that would be necessary for a quarantine.

Senator Lankin: Senator Patterson asked you about whether these days were stackable with other plans, and I think your answer was no, they’re not stackable. There is a minimum in this legislation. I just wanted to clarify that because I think Senator Patterson would have gone away — all of us would have gone away — with a different understanding of your answer to his question. Thank you.

Mr. O’Regan: We’re establishing the minimum. That’s right.

Senator Griffin: Minister, thank you for being here. Mine is a very quick little simple question. Do you think it’s as easy for someone living in rural Newfoundland to get a sick note as it would be for a person who lives in a major Canadian centre?

Mr. O’Regan: As somebody who grew up in a rural community in Labrador, I would say no. However, I would also add — and this isn’t entirely a comment that I’m happy to make — that it is increasingly difficult to also find those sick notes in urban Canada as well, unfortunately. We don’t have enough people in too many major cities who have a regular GP. But having said that, I take your point quite readily because I grew up in rural Canada, in Labrador, and it is not necessarily easy to have access to doctors. So I hear your point, and that’s something that will be necessary for us to address. Obviously we are about making sure people feel comfortable at home and don’t have to pay assiduously to do that, for the collective good as well as for their own well-being.

Senator Griffin: Thank you.

Senator Harder: Thank you, minister, for being here. I have a comment and a question.

My comment is I would join those who would put their thumb on the scale of urging you to accept an amendment in the other place, before it even gets here, that would support the policy of accruement being in place as opposed to that which is in the bill, as Senator Bovey suggested in her comments and Senator Lankin supported.

My question has to do with giving you the opportunity to tell us how you are viewing your federal-provincial discussions, territorial discussions, at this point with broadening this to non-federally-regulated employers. I hear your commitment, but I would like to hear whether and what time frame you expect that to be in place so that there could be broad fairness amongst the workforces, whether or not they’re federally or provincially regulated. That’s a huge concern for many of us.

Mr. O’Regan: Thank you, Senator Harder. I will speak to it briefly and will perhaps get my deputy to speak to it on an officials level.

I hit the road fairly early on in my tenure, as I’m wont to do, and I had appeared before senators in three previous portfolios as well. If there is a constant, it’s that I like hitting the road and getting out and talking to my provincial and territorial colleagues and stakeholders, and particularly — as I said before, I grew up in a rural part of this country — I like hitting areas that don’t necessarily have a Delta hotel conference room.

In my conversations with my provincial and territorial colleagues, they have all been of open mind and heart on this. I’ve been blessed with some extraordinary provincial and territorial colleagues in this portfolio, as I have been in previous, and there is certainly an openness.

I think the thought was not to put the cart before the horse and to make sure to look after our own jurisdiction here first in federal jurisdictions, and then we were looking at convening a meeting of my provincial and territorial colleagues very early in the new year. We don’t want to waste too much time with the understanding that not much gets done in January, but it would be extremely shortly thereafter to get the ball rolling.

On a longer timeline, I don’t know if I can get the deputy to weigh in on that. I know she’s had conversations with officials.

Ms. Hassan: Thank you, minister. Thank you for your question, senator.

As the minister has indicated, given that this issue was very important to him in the deputy minister level discussions, as well as with other senior officials, we have raised this as a key item for upcoming meetings. The next scheduled federal-provincial-territorial meeting of ministers is in early 2022, and this item will certainly be on the agenda.

[Translation]

Senator Petitclerc: Thank you very much for being here this evening, minister, and Ms. Hassan. Time permitting, I have two questions. The first question is more of a clarification. I’m going to quote one of the witnesses we heard from last week, Michael Villeneuve.

[English]

Michael Villeneuve, Chief Executive Officer of the Canadian Nurses Association said:

It certainly seems clear to us that the intention of the bill is to protect people from being threatened, harassed and intimidated, whether that’s through an online portal like Facebook and even into email.

[Translation]

I’m interested in the degree of protection against cyberbullying that could occur. I’d like some clarification on that aspect, if possible.

[English]

Mr. O’Regan: Senator, as I understand it, Minister Lametti addressed that portion of the bill there, so I’ll speak to it more broadly and more generally to say that I know that there was some consideration given obviously to intimidation of health care employees online and to their mental state.

Particularly what drove that section of the bill was Canadians were almost entirely united in how utterly appalling it was to see our health care workers, under great duress during a pandemic, confronting that sort of abuse and obstruction as they attempted to get to work to do the things that we ask them to do. We wanted to give clarity to law enforcement about intimidation and the physical obstruction of them being able to perform their duties so that you had clarity given to law enforcement to ensure that they knew exactly what to do.

When I first introduced this with Minister Lametti, there had been those who said to me, “Well, you know, a lot of these powers already exist and this is just politics.” Well, to the particulars of the point, the fines and the sentencing will demonstrably increase. Secondly, yes, you know what, politics isn’t always a bad thing. Sometimes it’s a good thing. To very clearly tell health care workers in this country that we support them and that we are there for them in a real way as they go about their duty sends a very important message, and I think it’s good politics.

[Translation]

Senator Petitclerc: Thank you, minister. If I have a little more time, I’d like to ask the following question. Actually, several witnesses have expressed reservations about requiring a medical certificate to obtain paid leave.

So far, you have touched on some aspects of the issue, but have you analyzed the risks or the impact of this kind of requirement on certain groups that are already vulnerable?

I’m thinking in particular of those living with disabilities. For these individuals, it’s very complicated to go get this dreaded medical certificate. The impact is the same for a single mother, for example. What we’ve heard from witnesses is that some groups might not use paid leave because of the complications that come with the medical certificate requirement. What are your thoughts on that?

[English]

Mr. O’Regan: Thank you, senator, for the question.

As it’s currently drafted, an employer may require in writing, and no later than 15 days after an employee’s return to work, that the employee provide a certificate. That certificate is to be issued by a health care practitioner, and it certifies that the employee was incapable of working for the period of their medical leave of absence with pay.

I can understand how this could be onerous for workers, particularly in light of the pandemic. There is also data to suggest that workers are less likely to use the sick leave they’re entitled to when a doctor’s note is required. That’s important. You had an Ipsos poll from November 2018 that indicated 82% of Canadians would rather go to work sick than go to the trouble of obtaining a medical certificate.

As I’ve said in my earlier questions, I am mindful of potential barriers to paid sick leave, to having access to paid sick leave, and I’m also mindful of potential ways that we could address them. Again, I would need to see the exact language of any amendment in order to determine whether it would strengthen the legislation. That’s also my way of saying to you that I’m open to that.

Senator Moodie: Thank you, Mr. Minister and Ms. Hassan, for joining us today.

I just have a comment to add to this discussion about medical certificates, because I am a physician and I work in this arena. I can tell you that there is even a new layer of complexity in that you cannot enter some medical offices — certainly you can’t enter a hospital, and you can’t enter some medical office buildings or clinics — if you’re symptomatic these days. So your ability to actually go in to get this certificate is impossible. There is one alternative, the option of telehealth, which is available but in a limited way. The actual ability to obtain a certificate is severely limited. I would support any change in that area that you might consider.

My question is really related to what we heard from previous witnesses who talked about the cost and the impact on small businesses and employers, especially at this time when businesses have suffered significantly. They raise the question, what would the implementation of 10 days of medical leave do to them, potentially tipping them over? Have you considered this? What is your impression of this argument?

Mr. O’Regan: Thank you, senator.

I would say on the first question, and you have already heard and I have emphasized this point — that we are open to finding some sort of accommodation on medical certificates. I think it is important, though. There is some built-in flexibility in that you have 15 days after the employee’s return to work. After the employee’s return to work, then the 15 days begin. There is some flexibility built into this. It’s not without flexibility or an acknowledgment of the difficulties of receiving it.

Having said that, though, the intention of this is to make sure that we don’t go through what we’ve gone through before, either with a variant or perhaps another pandemic. We don’t want to look back either way and say we could have done this and we knew we should have done this, but we didn’t do it. This is our response to that.

I can’t emphasize enough, but I will anyway, that the biggest cost to many of these businesses, of course, is if they have got to lock down, if they have to shut down. Do we believe, for all sorts of reasons, that this is a smart thing to do to make sure that we don’t see a lockdown on the scale that we saw over the course of the past two years? Yes, we do. Because people going to work, and people going to work in doubt, that is a question.

Having said that, though, I know what you’re getting at. There will be a cost. I understand that. That is something that we are willing to listen to stakeholders about. The implementation of this will be crucial. We know that. We are trying to find that fine line — and it is not easy, but I know that you can all appreciate that — between acting urgently but also acting effectively. Acting effectively means listening to those stakeholders and to those people on the ground. I am determined to do that. We’ve got a busy few months ahead us.

Senator Moodie: Thank you. I have a quick follow-up comment.

In terms of the 15-day rule around medical certificates, I’m sure you’re aware that that places the physician in the position of having had to document his or her involvement in seeing a patient to be able to verify that this occurred. Without that, the physician is taking the word of the patient and may never have even seen the patient during that period of illness. Again, why bother with this medical certificate when the physician is endorsing an illness he or she didn’t actually get involved in treating? So just a point to make. Thank you for your answer.

The Chair: Thank you, Senator Moodie.

Minister, would you like to make a comment?

Mr. O’Regan: Thank you, Senator Moodie.

I was just going to acknowledge the comment and the sober second thought. Thank you.

The Chair: Thank you. You can count on the senators to do that.

Senator Martin: Thank you, minister.

I can appreciate the time constraint and the work ahead of you. My colleagues have asked some very good questions. I share the concerns about small businesses and all of the other specifics that I know will have to be addressed. As the Deputy Leader of the Opposition in the Senate, I’m focused on process and timelines.

I see my colleague Dennis Patterson, who is the critic of the bill, was given five minutes. I feel I should give my five minutes to him, but he would need far more than that.

I understand that Scott Aitchison, the critic in the House, has yet to have a chance to meet with you to have a critic’s briefing. I am hoping that you will be doing that with Senator Patterson. I know on the 9th it was confirmed that he would be critic. My first question is on that important step of having the critics’ briefing and a lot more time with you than the five minutes or several more minutes in this committee. May I ask for you to confirm that this is something that will be happening for the critics in both houses?

Mr. O’Regan: Oh, senator, confirmed. I believe that my office has spoken to Senator Patterson’s office to offer briefings on a couple of occasions. I think it’s just a matter of making sure that we line up the time at a time of convenience for the senator and for ourselves. That will most definitely happen.

Senator Martin: Wonderful. I assumed that it would, so that’s great to hear.

Now, speaking of time, minister, even in this session, we’ve heard about potential amendments. There are probably amendments in the house. I know that it went to committee on the 9th. Today is the 13th. This is potentially the final week, but there is a possibility that we have to sit another week.

I am just trying to understand. I feel like we need so much more time with this important bill. It’s complex. There are all these unintended consequences by not considering carefully potential amendments and whatnot. I know you say this is a priority for the government, but I think in the previous Parliament 36 other government bills came before us. I’m just looking at the timeline and wondering how we are going to get this done, minister. It’s at committee, you’re talking about considering amendments and it’s our final week. Would you please reassure us that, if this is a priority, we will get this done? I’m wondering how, with the limited time that we have.

Mr. O’Regan: Senator, I would acknowledge and reiterate once again it is the fine line between making sure we do this effectively and thoroughly, but I also recognize the urgency of what’s before us. I was looking at the headlines today — when I have had a moment, because I have been dealing with this all day — and the fact is that the Prime Minister has recognized and officially talked about his concern about Omicron and that those numbers are rising, and the nature of this variant is gravely concerning. It is weighing those two things.

I think it’s noteworthy that this is one of the first pieces of legislation we’re putting through. That is obviously indicative of its priority to this government.

I would also point out that this is something for which, in the House of Commons, you saw unanimous support at second reading, and that is not something that happens all the time, as you can appreciate. For members in the House to give that degree of support, I think, is a sign. I would never say a bill is perfect, but certainly it’s a sign that we understand, collectively, how important it is to act as quickly as we can on this so that we have all the tools necessary and available to make sure we protect our people, protect workers, protect businesses and protect Canadian society from the full impacts of the new variant.

In other words, let me reassure you that there are a lot of bright people who are working extremely hard all the time, this week, to make sure this is the best possible piece of legislation we can create.

The Chair: Thank you, minister.

Senator Kutcher: Thank you very much, minister, for being here. Like Senator Lankin, I do support the intent of this bill, and like Senator Lankin, I think our job is to improve the legislation that we get. I am the senator that Senator Lankin was talking about in terms of amendments to the sick days.

So far, I have heard no arguments to support the idea of having medical certificates of any kind. I was going to make the point that Senator Moodie made. The issue of a medical certificate coming 15 days after is that the patient goes to the doctor and says, “Doctor, I was sick.” The doctor trusts the patient, and the doctor gives the note to the employer saying the patient was sick. The employer trusts the doctor but does not trust the patient. The whole 15 days doesn’t make any sense at all. I don’t see where the 15 days makes any sense. I don’t see the point of medical certificates in any case. What was the purpose of putting this into the bill?

Mr. O’Regan: The purpose of putting it into the bill, senator, was to ensure that we had a tripwire in case there were any concerns of abuse. What you’re saying is, in substance, you’re not convinced that that would be the tripwire necessary if that were our intent. Am I correct?

Senator Kutcher: Yes, and I think I heard you say earlier that that was not an issue from the data that you had. We’re not looking at huge numbers of people abusing this. You used the lovely Newfoundland example to underline.

Mr. O’Regan: Misleading, yes.

Senator Kutcher: So I’m trying to understand why it’s even in here.

Mr. O’Regan: Perhaps there are other ways we can make sure — I think it’s incumbent upon us to make sure that, in any case, even if it isn’t the majority of people, that we do make sure, when we talk about benefits accrued or any sort of government program that we are implementing, that they are there for the purposes for which we intended and that if there were any sleeveens out there, that you can minimize their number. That’s the intent. I don’t think you can ever be absolute about these things. What you’re raising is a very good point — whether it’s necessary at all. I would say there are perhaps other things we can do to make sure you minimize the sleeveens, but I hear you.

Senator Kutcher: Thank you very much.

Senator Dasko: Thank you, minister, and your team for being here today.

I have a slightly different take on the impact on small business from what we learned last week, and I have to say that I understood from listening to the small business witnesses that in fact there is probably very little impact on small businesses because this law affects federally regulated industries, and those tend to be very large companies, as we learned from the union reps who were here last time. The real fear for small business is that the provinces will take up the demonstration effect and will implement the same regulations in the provinces. That, of course, is what you’re trying to do with your negotiating with the provinces. As a federal minister, you only have the power of persuasion with the provinces. You can talk to them and say, “Wouldn’t it be nice if you implemented these sick days,” and so on. I can name a couple of premiers who will say, “I don’t think so, minister,” and I can see it going along those lines.

Nevertheless, my question is a follow-up. You have very talented economists who work for your department, and they may have the answer to this question. What is, in your view, the impact of this, let’s say, in the marketplace, in terms of market forces, if you change your rules and you have 10 paid sick days? From past experience, where the feds have taken the lead in areas like this, is there an impact on the provinces, especially in terms of market forces? Companies who are affected by your regulations and others who don’t have these regulations, are they led to introduce these measures on their own because of market forces? That is outside of what might be happening at the provincial regulatory level. That’s a bit of a convoluted question, but I put that on the table for you.

Mr. O’Regan: That’s why we have deputy ministers, for convoluted questions. I will allow her to address a portion of that, if she’s able to. I will say this. Just because something is simple doesn’t necessarily mean it’s any less true. The simple argument on this — and it’s sweeping, but it bears repeating — is that the most expensive, the most costly thing that could happen to businesses, is to go through another lockdown. Where can we reasonably take measures that happen to relate well to benefiting the social safety net as it is overall, to benefiting workers and to benefiting the health of everyone who works in a workplace? And given the speed of this virus, particularly of the most recent variant and the speed with which it operates, how do we protect everyone?

If we can take reasonable measures — and I believe this to be a reasonable measure, and I believe we’re open to reasonable accommodation to make sure of that — this seems to me to be common sense. That is an argument I would make to businesses of any size in this country. Having said that, I understand smaller businesses are more sensitive and can often bear more of a brunt than larger ones in some circumstances, and we have to be attuned to that, too.

But I still come back to that argument primarily. The most expensive thing, the worst thing that can happen — particularly to smaller businesses, one would argue there, too — is to go through another lockdown. With that, I will go to my deputy to get to your convoluted question, although it wasn’t that convoluted, to be honest with you.

Ms. Hassan: Thank you for your question. When we do look at the industries under federal jurisdiction, many are unique to the federal world. Although some are under either federal or provincial jurisdiction, such as trucking, in many cases, there’s no what I would call bleeding from the federal to the provincial businesses.

So your great question is whether there will be a market adjustment and will it lead to provinces embarking? We are hopeful that they actually embark because the pressure comes from employees, who will look to the federal legislation as a model, as a floor and as something that should be mimicked across Canada to give all Canadian employees that number of sick days, whether they’re working for a federally regulated business or a provincial one. It’s our hope, and let’s see — also through negotiations with the provinces — how much progress we can make.

Senator Dasko: Thank you.

The Chair: Thank you, minister. We’ve done really well on time. In fact, we have a minute and a bit left, so we will go to second round, starting with Senator Bovey.

Senator Bovey: Thank you, minister. I want to come back to the medical certificates. We are spoken about as the chamber of sober second thought, and that is based on consultation. We have heard that doctors don’t have the time to give medical certificates and that patients have trouble finding doctors. We have also heard that patients often, though not always, have to pay for those certificates. I think that needs to enter into the equation. Why do we need certificates if people who have COVID have the tests that prove they’re ill?

Mr. O’Regan: Perhaps I’m just musing here, but I think there has to be some credence given to those who felt they may have had symptoms, who did not necessarily acquire COVID, but who did the right thing by taking the precaution for however many days before they were able to get tested.

Senator Bovey: You can get the test quickly. If we had more rapid tests, I believe those could happen immediately, as happens in other countries.

Mr. O’Regan: Understood, but there are a few days in the interim when you have to look after people in those circumstances. I hear your point. It is well taken and it does feed into the equation.

Senator Patterson: I’d like to thank my colleague Senator Martin for raising the issue of the critic’s briefing. I’m glad I get a chance to speak about this. This is not a question, but I’d like to put on the record and point out that the biggest issue with the critic’s briefing is that I didn’t receive a critic’s briefing — although I had asked for it last Thursday — before the minister’s appearance or before the committee started its work, nor did I receive the responses to written questions that I had asked for in lieu of the briefing. It’s important to get these before the committee starts its work, and now we’ve almost concluded our pre-study. This is a long-standing practice in the Senate: Critics’ briefings occur before the committee starts its work. I’m disappointed that this did not happen in this case, despite my request to the minister’s office. That’s not the way we should work, and I wanted to put that on the record.

Mr. O’Regan: I’d like to have the opportunity to put on the record that there were two offers for briefings to the senator. I’m not exactly sure what happened.

Senator Patterson: No, that’s not the case.

Mr. O’Regan: My office gave two offers. If I could make sure that’s on the record, I would appreciate that, Madam Chair.

Senator Patterson: That is not true, minister, with all respect. We only heard from your office late this afternoon to say that there was no time for a briefing.

Mr. O’Regan: I double-checked with my office today, senator.

The Chair: Thank you, Senator Patterson and minister. I think we are out of time.

I would like to thank you, minister, and Ms. Hassan. You are very busy people, and we appreciate the time you’ve spent with us. I want to thank our senators for asking such terrific and brief questions.

You will get a copy of our pre-study shortly. We certainly hope you will take our observations and comments seriously. We’ve heard you say a number of times today that you are open to suggestions and ideas. I suspect we may get a bill that is different from the bill that we have pre-studied. I would like to support Senator Martin in her query about the possibility and timelines related to this effort. I know that Canadians are anxious to see this bill passed, but we are anxious to see the right bill passed.

Again, thank you so much for your time.

Mr. O’Regan: Thank you so much.

Ms. Hassan: Thank you for inviting us to join you. Have a good evening, senators.

The Chair: We will proceed with our next panel. Thank you, witnesses, for being with us at this rather late hour and at such short notice. We welcome your input and we need it to complete our pre-study of the bill.

Our witnesses are, from Federally Regulated Employers — Transportation and Communications, known as FETCO, Derrick Hynes, President and CEO; from the Canadian Union of Public Employees, Chandra Pasma, Senior Research Officer; and from Workers’ Action Centre, Deena Ladd, Executive Director.

Witnesses, as usual, you will have five minutes for your presentation. I’d ask you to stay within your time limit. If you see me waving my hand at the 10-second mark, please wind down. I hope this helps all of us to stay on time and prevents me from having to interrupt you.

Please, Mr. Hynes.

Derrick Hynes, President and CEO, Federally Regulated Employers — Transportation and Communications: Thank you, Madam Chair, and good evening, senators. I’m pleased to be with you this evening to share some comments on Bill C-3.

First a bit about FETCO and the organization that I represent: FETCO is the largest employers’ association in the federally regulated private sector. Our members are large employers, primarily in the transportation and communications sectors. Our members employ about 500,000 employees, so more than half of all the workers in the federal private sector are within our membership. In practical terms, we represent all the major airlines, courier companies, marine ports, railways and telecom firms, as well as a few others. These are primarily large employers, and the vast majority are heavily unionized organizations.

At the outset, I want to say that our members have no particular arguments against the spirit of this bill. We recognize this was a campaign commitment of the government. We also recognize that in these extraordinary circumstances during the worldwide pandemic, sick leave is obviously important. However, we do believe the bill contains a fatal flaw that, if not amended, will result in unnecessary workplace conflict. I will talk a bit more about that later in my comments.

Most if not all of the employers in our membership already have substantial leave provisions in place to deal with situations when an employee is ill and cannot work. In unionized organizations, which is the majority of our membership, these provisions have been freely negotiated between the parties over decades of collective bargaining.

We believe — and I think the minister confirmed this in the last presentation to you — that it is the minister’s intention not to interfere with these current arrangements, that is, not to allow an employee to stack these 10 new days of paid sick leave on top of current allotments if an employer can demonstrate that the benefit they provide is of at least equal or of greater benefit to the employee. We all heard the minister say earlier that this is meant to be the floor and there is not meant to be stacking.

However, the bill is silent on this issue, which we believe is a serious flaw in the language of the bill. We believe it can be interpreted as leave that can be stacked on top of other leaves, which unfortunately will result in workplace conflict that is completely unavoidable. There is no provision in the bill to prohibit this. In the section of the Canada Labour Code that speaks to the greater right or benefit, they do not apply. So one could interpret stacking here.

That said, we believe that the bill is flawed and could be improved in three ways, and I’m happy to talk this through during questions and answers. I will provide them to you in high-level terms.

First, that the bill be amended to include an explicit reference that ensures that when an employer offers a greater right or benefit, that these new sick leave provisions do not apply.

Second, that in keeping with other provisions under the code, such as paid personal leave days, paid domestic leave, paid violence leave, paid bereavement leave, that any new employee has to wait three months before being eligible for this paid benefit.

Third, that the last section of the bill that talks about future regulatory consultations with stakeholders be made clearer by adding language that gives the government the regulatory power to exempt certain job classes or industries from this requirement as appropriate specifically due to the employment practices of that class.

In all three of these cases, FETCO is pleased to provide specific language to your committee that we feel should be used to amend the bill and strengthen it. We believe our recommendations are reasonable and in full alignment with the government’s intention of introducing paid sick leave in the federal private sector.

These are my comments. I’m happy to take your questions.

Chandra Pasma, Senior Research Officer, Canadian Union of Public Employees: Thank you and good evening.

It is my pleasure to be joining you this evening from the unceded territories of the Algonquin and Anishinaabe people to speak about Bill C-3 on behalf of the 700,000 members of the Canadian Union of Public Employees.

CUPE has fought long and hard over the course of the pandemic, and even before, for all workers to have access to paid sick leave, so we are very pleased to see paid sick leave for all workers in federal jurisdiction being put forward by the Government of Canada, and we hope that provincial and territorial governments will follow suit. However, we do have concerns about how some elements of Bill C-3 will work to limit access to paid sick days.

First, we are concerned that the monthly accrual model with no effective carry-forward makes workers wait 11 months before they actually get 10 paid sick days, in addition to making it much more difficult for them to use those days when they need them most. For instance, if Bill C-3 were to come into effect before January 1, 2022, it will still be November 2022 before workers actually have 10 paid days of sick leave. That means that a worker who gets sick this coming February still only has one day of paid sick leave, and that one day is only if they worked all of January. Workers who are hired in January will still have no paid sick leave.

In addition, the fact that the 10 paid sick days must be earned month to month every single year and that any paid sick days carried forward from last year are taken away from this year’s allotment leaves the worker with a difficult decision to make. Either workers have no paid sick leave available to them in January or they have to be careful not to use their full sick leave every year so that they have some days to carry forward into peak cold and flu season between January and March. CUPE urges you to amend Bill C-3 to ensure that all workers are granted the 10 days of paid sick leave as an annual allotment rather than an allotment earned on a monthly basis. This allotment should be made available on hiring or after a very brief probationary period.

Our second concern is regarding the right of employers to demand medical certificates for the use of even a single sick day. Doctors have been very clear that sick notes are not an appropriate use of health care resources, which is a significant concern at a time when our health care system is already under strain. They also put people at risk of exposure to other infectious diseases by making them appear at a health care facility when their illness doesn’t actually require medical treatment.

This requirement is also a barrier for workers to actually make use of their paid sick days. First of all, not all workers have a family doctor. According to the most recent Statistics Canada data, 4.6 million Canadians do not have a regular primary health care provider. Among those Canadians who do have a regular health care provider, less than 40% said they could receive a same-day or next-day appointment with their doctor — and that was before the pandemic. A significant proportion of workers will need to take time off later to attend a doctor’s appointment in order to obtain a note stating that they were previously sick with an illness that the doctor is not even able to verify. Second, because medical notes are not covered under the provincial health insurance plans, doctors in some provinces are allowed to charge fees of up to $30 per sick note. A minimum wage worker might be charged a third of their daily wage or more to provide a sick note, in addition to the costs of transportation and parking, which provides a serious disincentive to taking a sick day. CUPE strongly recommends that this clause be removed entirely from the bill.

Our final concern regards the provision allowing employers to demand that the leave be taken in increments of no less than a day. This means that an employee who shows up at work feeling fine but starts to develop a fever or sore throat has an incentive to stay at work for the rest of their shift, potentially infecting their co-workers and the employer’s customers and clients because going home for part of a shift means losing an entire paid sick day. We know that one of the keys to ending this pandemic is going to be empowering workers to stay home or go home whenever they are sick. This clause does the opposite. We recommend changing this clause to allow workers to take sick leave in smaller increments, even in half days, or deleting the second half of proposed subsection 1.5 entirely.

In conclusion, CUPE is very supportive of this bill’s goal of giving federally regulated workers 10 days of paid sick leave, and we hope that the bill is swiftly passed and implemented, but we also encourage you to make these three amendments, which will ensure that workers actually have meaningful access to these paid sick days.

Deena Ladd, Executive Director, Workers’ Action Centre: The Workers’ Action Centre works with non-unionized workers in contract, temporary, part time and predominantly misclassified independent contractor workers. We also work with a diverse range of workers who are newcomers, immigrants, migrants, women and racialized workers. Many of the workers we work with are in precarious employment and have little access to health benefits and paid sick days.

I would like to thank the committee for the opportunity to speak to Bill C-3, which would introduce 10 paid sick days for federally regulated workers.

I think effective sick leave policy is critical for the health and well-being of workers, especially for the workers we work with. The ability to take time off without losing pay is one of the most critical issues that the workers we support struggle with. Losing a day’s pay means going without food or having money for necessities to take care of their family — not luxuries, just the basic needs of daily living. Many of the workers we support do not have access to health benefits, so the only remedy they can take is to stay at home. They definitely don’t have money to fill out prescriptions, which brings me to the first important amendment needed to Bill C-3.

Workers need their allotment of paid sick days right away. I think we know that influenza or COVID or any other illness does not look around and say, “Well, I’m not going to infect this person today because it’s January and they’ve not accrued enough sick days.” The illness doesn’t care if you’re new in your job or if you’re in a job where you are more exposed to illnesses or if you’re immunocompromised. Currently, Bill C-3 makes employees accrue eligibility at the beginning of each month. This does not make sense. No worker can plan to get the stomach flu in April so they at least have the ability to stay home for three days and not infect anyone in their workplace. This makes absolutely no sense from a health perspective and defeats the purpose as to why paid sick days are being introduced in the first place. We believe that it is critical that Bill C-3 be amended to provide full access to the 10 paid sick days right away.

The second amendment I’d like to speak to is the ability of an employer to require a health provider certificate from workers. Many of the workers we work with cannot afford the $40, the $50 and we’ve even heard about $100 sometimes being charged for a sick note, which is absolutely ridiculous. On top of being sick, they then have to figure out how to pay for a doctor’s note, how to get a doctor’s note and even how to get to the doctor. Many low-wage workers don’t have a regular doctor, so then the only options are to find a walk-in clinic or go to the emergency room. This absolutely does not make sense, and it’s not good for anyone. The last thing you need is having someone who has the flu going on public transit or going into places where other members of the public are ill or dealing with health issues and adding that illness into the mix. There is widespread agreement in the medical community that sick notes are a burden on the health care system and that health professionals have enough on their plate without this burden, and that forcing workers to enter into public spaces when sick adds to unnecessary public health risks.

When the Ontario Liberal government legislated Bill 148, Fair Workplaces, Better Jobs Act, which included 10 days of personal emergency leave, the provision for employers to require a certificate from a qualified health practitioner was removed. Workers also received access to the 10 personal leave days right away. We were opening up access to 1.5 million people for these new days because they were in workplaces of less than 50. I think that there were no such abuses that we have found and, in fact, it sort of relieved this burden of the paid sick days. Rather than being concerned with abuse, policy-makers should focus on seamless accessibility. Workers are more likely not to take needed paid sick days because they are not seamlessly accessible than actually abuse paid sick days.

There is enough pressure on workers to come to work already, so I think it’s really critical that we need to look at the CRSB and even the provincial program that was brought in by the Ontario government. There has been a lower-than-expected uptake of these programs because of the barriers to access, and that’s clearly demonstrated. As worker advocates, we want workers to get benefits of this policy for what it’s intended to be, which is the ability to stay home with seamless access without losing critical income, so we’re asking you to remove the ability of employers to ask for a medical note completely from Bill C-3.

Thank you so much.

The Chair: We will go on to questions from senators, and we all know the routine, five minutes for your question and your answer.

I’m going to ask a very brief question to Mr. Hynes first. Mr. Hynes, you’ve heard the comments from Deena Ladd and Chandra Pasma, and we’ve heard these comments from other witnesses. I want to get your response, as the Chief Executive Officer of FETCO, to the proposal that all workers get their paid sick leave as an annual allotment as opposed to the accrual basis that the bill is proposing.

Mr. Hynes: I’d have to say I don’t have a response to your question because we didn’t really discuss it with our members, given that the language was in the bill as was. The language that existed in the bill on accumulating one day per month until you get to the 10 days was acceptable to employers. The counter proposal that’s being discussed at this table is not one that we’ve considered.

I will say that, as I noted in my comments, amongst our members, most, if not all, already provide a benefit that meets or exceeds what’s required under this legislation, so your question may in many respects be moot to our members.

The Chair: Thank you. We will proceed with the first question from the deputy chair of the committee, Senator Bovey from Manitoba.

Senator Bovey: I would like to thank all the witnesses, and I very much appreciate your insights.

Given the discussions we’ve had on accrual and medical notes, I’m not going to go down that path again.

As I understand it, the federally regulated industries and federal Crown corporations encompass about 6% of all employees of Canada, and I’d like to know what percentage of that 6% are, indeed, unionized and what percentage aren’t. Of those that are, you said, Mr. Hynes, that most of your members have access to better benefits than this bill. Is that true of all the unionized workers that will be affected by this?

My second question and last question will be: Were you all consulted as this bill was being developed?

Mr. Hynes: Are you asking me?

Senator Bovey: I’d like a quick answer from all of you, if I may. Yes, Mr. Hynes, if you can start first, that would be good. Thank you.

Mr. Hynes: We were not consulted on this bill, but it’s not a surprise given that it was clearly written in the election platform of the current government, so no surprise to see it passed within the first 100 days of their mandate.

In terms of your other question, I don’t have the stats at my fingertips around what the unionization rate is in the federal private sector, but I will say that amongst our members — and we encompass about half the workers in the federal private sector — most are substantially unionized organizations. Unions and their employers have negotiated provisions to accommodate for sick leave within their own situations. I would say each solution is unique. It’s not always “paid sick leave.” There may be short-term disability plans in place that an employee can go on once they reach a certain number of sick days.

Our members would argue that they have a benefit that meets or exceeds the requirements under this legislation, which is why we believe the legislation needs to specifically call that out and allow those employers to be exempt from these provisions.

Senator Bovey: Ms. Pasma, do you want to add to that, and then Ms. Ladd?

Ms. Pasma: Thank you, senator. CUPE was not consulted on this bill either, although we have not made any secret of our support for paid sick days over the course of the pandemic and even before.

I am also not sure of the statistics on what proportion of the federally regulated workforce is unionized, but I want to highlight that even when workers are unionized, it doesn’t necessarily mean they have access to all the benefits in their collective agreement. That is particularly the case for temporary and casual employees, as was highlighted last week by Bea Bruske, the President of the Canadian Labour Congress, which is why it’s so important to have regulations like this that set a baseline for all workers so that non-unionized workers and temporary and casual workers, who are sometimes excluded from the benefits of a collective agreement, still manage to have access to paid sick days. As Deena mentioned, COVID and the flu don’t really care whether or not you are one of the workers who is included in the provision or not.

Ms. Ladd: It’s 65% of federally regulated workers who non-unionized, so that means 35% are unionized. I was not consulted but, absolutely, paid sick days have been a huge priority for our organization. I think the thing is that we have to note, just as Chandra mentioned, that the increase in precarious employment that is connected to many federally regulated jobs means that what we’re seeing is an increasing deterioration of wages and working conditions, including access to benefits. Thank you.

Mr. Hynes: Can I add one more thing? Being non-union does not mean an employee does not have access to benefits like this. We have members that are large employers that are predominantly non-unionized employers and provide substantial sick leave provisions for their employees.

Senator Bovey: I appreciate that, and I thank you for drawing that to our attention.

Madam Chair, I’m going to cede the rest of my time.

Senator Patterson: Colleagues, before I ask my question, we had a moment on the last panel where I dared to argue some facts with the minister. His office has now clarified that the two briefings he was referring to which he said I was offered were the technical briefings on November 26 for all parliamentarians and the December 6 briefing offered to senators. These are not equivalent to a critic’s briefing. A critic’s briefing is different from a technical briefing. They’ve always been held separately in advance of the minister’s appearance and the committee’s work, and I just want to ensure that the record is correct.

My question is for Mr. Hynes. You’ve raised an important issue here today about stackable entitlements versus these 10 days being the floor for sick leave. I understand that you feel the minister’s assurances just now given were not enough. I’d like to ask you, have you raised this concern, have you sent your three proposed amendments to the government, and if so, what response did you receive? Thank you.

Mr. Hynes: Yes, I have raised these concerns. Yes, I have shared our information widely. It’s not confidential in any way. We always want to be as open and transparent and constructive in the process.

I believe the minister and his team have been very clear. He confirmed it earlier this evening that they do not intend for this to be a stackable provision. We would argue — and our lawyers back us up on this — that the lack of an explicit reference to that in the legislation means it will likely be interpreted as stackable. It’s the easiest amendment to make in the world, adding a sentence to the bill that will avoid inevitable conflict in situations where major employers are already providing a benefit that meets or exceeds this standard.

Senator Patterson: Thank you for that.

Second question: We just heard from the minister that he’s open to amending this bill to address concerns raised by other stakeholders such as the call to remove the medical certification requirements. I note that the Labour Code, under section 206.6(4), currently allows for an employer to ask for documentation in writing up to 15 days after personal leave is taken. I think that can probably be done through a phone call or otherwise. Would you be supportive of the government removing clauses that enable employers to ask for medical certificates?

Mr. Hynes: I would generally say no, so I’ll be the voice in opposition to what I hear to be strong support for removing this provision.

I would say that amongst our membership, major employers, they are not demanding medical certificates for employees who take one or two or three sick days. These provisions are meant to get to patterns of abuse. They are meant to be a backstop. They’re not meant to be used on a regular basis. The code was amended, I think a couple of years ago, to expand the definition of health care practitioner. It does not have been to a doctor.

I totally appreciate the points that have been made tonight that these are difficult to get. What employers appreciate about the option of requiring a medical certificate is it is a bit of a countervailing force against inappropriate behaviour in the workplace, and that’s not the norm. I agree with everything said tonight that most employees are honest and up front and are going to take a sick leave because they genuinely need it, and all employers want that to be the case. This is genuinely meant to be a backstop.

Senator Patterson: Thank you, Mr. Hynes. You’re saying that, if I understand you right, employers don’t need to ask for the medical certificate and don’t, in fact, always ask for the medical certificate. It need only be used in certain rarer circumstances. Is that correct?

Mr. Hynes: I can’t speak for every employer, but what I can say in the circumstances in which we operate in larger employers, I don’t believe that they’re being regularly requested for short durations of sick leave. I believe they’re being used as a backstop to root out patterns and where there may be incidents of abuse.

Senator Patterson: Thank you very much.

Senator Lankin: My first question was going to be to Mr. Hynes and Ms. Pasma, but I believe they’ve both answered my question.

Mr. Hynes, would you be willing to circulate the amendments that you’ve talked about and provide them to the committee clerk so that senators could see them? That would be terrific.

I will ask my question to Ms. Ladd. You spoke about the workers that you represent, and there were a lot of different categories that you touched on, and you touched on a growing number. I think you referred to it as misclassified workers.

This committee that you’re before will be considering at some point in time whether or not to launch a major study into the future of workers in the gig economy, and I think one of the things that we’re interested and concerned about is access to benefits. In the case of this legislation and misclassified employees who are classified as independent contractors, let’s say, incorrectly and who are actually employees, of what assistance would this legislation be to those workers in terms of access to benefits, and in this case, sick leave?

Ms. Ladd: I think what we’re seeing in particular in our centre and what many of the legal clinics are dealing with is truck drivers, in particular, who are being misclassified as independent contractors, but when they followed the process or challenged the status issues of their claims, we’re winning because it is very clearly misclassification. For these workers, legislation like this where workers then will have access to paid sick days is absolutely critical because those workers have nothing. In some ways, they’re just even arguing to be classified as an employee and have access to things like minimum wage and making sure illegal deductions are not taken out of their paycheques and issues of wage theft.

Having the opportunity to have paid sick days, especially if you think about doing the kind of back-breaking work as driving for two weeks across the country or into the United States to do deliveries, we’re talking about health issues and all kinds of physical consequences of doing that kind of long-term driving. It’s going to be really critical for them, but as you’ve noted, misclassification is also a huge issue. I look forward to any work that is being done to ensure that there is a very clear legislative framework, as what we’re pushing for in Ontario, to ensure that it’s the employer that has to show that the worker is not an employee or not. That’s going to be really critical.

We have some very strong guidelines with the CRA to determine whether a worker is a worker or not, and we need to ensure that that’s at the federal level as well.

Senator Lankin: Okay. Thank you very much, Ms. Ladd.

Thank you, chair, if I have any time —

The Chair: You do, Senator Lankin, but there is some background noise coming from you so perhaps we could address that as well. You do have a minute and a bit left.

Senator Harder: Thank you to our witnesses.

I want to drill down a bit on the policy of accruement. You’ve heard from our comments as a collective with respect to the minister and indeed questions that have been asked about this that there’s some sympathy on the committee to deal with this. I want to follow up first with Ms. Pasma and get Mr. Hynes’ reaction.

Ms. Pasma, I am struck and intrigued by your comment that you would support a brief probationary period. Mr. Hynes in his comments talked about other benefits awaiting a three-month probationary period. What is your definition of a brief probationary period? And Mr. Hynes, I would like your comment on the answer to see whether or not we could get a consensus here on what would be appropriate.

Ms. Pasma: Thank you for the question, senator. My definition of a brief probationary period would be two weeks. We’ve heard the comparison with other benefits before, but there is a big difference between paid sick leave and going to see your dentist, for instance. Not that I’m recommending living with tooth pain for three months, but you could do it, whereas if you have COVID, you need to take leave now. When workers could get sick at any point in those three months and we really need them to stay at home, it makes no sense to make them wait until the three-month mark to get that time. They need that time as soon as they become ill.

That is why I recommend that there be no probationary period at all, but if there has to be a probationary period — if employers are really terrified people are going to sign up for a new job and not show up for their first day — then make that probationary period very short, such as two weeks.

Mr. Hynes: I don’t want to try to engage in a discussion about ranking degrees of sickness, because that’s clearly an argument I’m going to lose if COVID is enemy number one. Three months is the norm for any of these sorts of provisions under the code. It is the norm for multiple provisions where an employee would gain tenure with the employer and then be eligible for benefits such as this. I don’t see why it would be any different in these circumstances.

The Chair: Do you have your answer, Senator Harder? Do you have another question?

Senator Harder: I don’t have my consensus, but I have my answer.

The Chair: Ms. Ladd, do you want to comment on the previous question? We do have time.

Ms. Ladd: Yes, I would, Madam Chair. I’d just like to mention that with Ontario’s Bill 148, sick days were available to workers immediately. It’s critical that we understand how critical it is to have access during a pandemic.

At the centre, we run an emergency hotline, and during the pandemic, we had many workers come forward to us in situations where they were entering workplaces where there were huge COVID outbreaks, and they literally found out on their first or second day of work that there were COVID outbreaks happening but that employers were needing workers to be in those workplaces. Workers don’t know what they’re walking into, especially if they’re going into places where there have been issues around health. We want workers to be safe right from day one, especially during a pandemic. It’s really critical we ensure that workers have the ability to not go to work if they’re starting to get symptoms when they realize they’re in that situation. I just wanted to mention that. It was a huge issue on our emergency phone lines, and it’s quite concerning if you don’t allow workers to have access immediately.

Senator Kutcher: Thank you to all the panel members.

My question is to Ms. Ladd. You’ve mentioned the Ontario legislation, which you nicely described to us. I wasn’t clear whether you said there were abuses of this legislation or not. We’ve heard concerns that there may be potential abuses that employers raised where workers will take advantage of this and so there is need for medical certificates. Could you clarify to us what happened in Ontario around this issue of abuse or the concern about potential abuses?

Ms. Ladd: There actually weren’t any cases of abuse, frankly. What was really incredible about Bill 148 that was in play for about a year is that, before Bill 148, if you were in a workplace with fewer than 50 workers, you weren’t even allowed to take an unpaid job-protected day off. Bill 148 basically allowed an additional 1.5 million people to be able to take an unpaid job-protected day off if they were sick. During the year of 2018, an additional 1.5 million workers had access to this job-protected unpaid leave, and for the first time, we had two paid sick days that workers had access to. In Ontario, we have 6 million workers that rely on Employment Standards Act protection.

From research we’ve done and from conversations we’ve had with workers and even employers during that year, absolutely, they didn’t actually talk about any abuse. In fact, workers took the leave when they needed to, and we did not hear of any issues around abuse at all. I think study after study has shown, whether in San Francisco, New York, Seattle, et cetera, where we have quite a large number of paid sick days — San Francisco has nine paid sick days and New York City also has quite a lot of sick days — and the issue of abuse is just absolutely not there. Workers take what they need, and the research and evidence show that it’s not an issue.

We should take a look at the evidence and make our decisions based on that. Thank you.

Senator Kutcher: Thank you very much.

Senator Martin: Thank you to the witnesses. You obviously have great expertise in all of these issues surrounding what this legislation is proposing.

I’m fixated on process for this session and the fact that you haven’t been consulted. Hundreds of thousands of people are going to be impacted by this legislation. There could be amendments. We’re doing a pre-study, so we actually don’t know what the bill that we will be getting will contain. There are ideas that are being discussed, but it will be a different bill.

In terms of implementation, to prevent workplace-conflict issues, issues of misclassification and all the things you mentioned, I’m wondering about the consultation that will need to take place. If you weren’t consulted, I’m wondering who the government has consulted and is consulting. I hope that’s one of the things you will be a part of.

Would you speak to the timeline that we have before us? The bill is before the committee in the House of Commons. It is time-allocated, so there is a limited time. There could be amendments, and then we will get it. What would you like to see in terms of the input that you can give to the government and to us in the overall process? Mr. Hynes, perhaps you could go first.

Mr. Hynes: We obviously always prefer there to be comprehensive and meaningful consultation. In this circumstance, where we see this bill so early in this government’s mandate, it’s not really a surprise. It was a huge campaign commitment.

For us, the real redline issue is the one I talked about around the greater right or benefit. If the minister — and I believe him when he says this — believes that this is meant to be the floor and that this should not be stacked, then that needs to be called out in the legislation. We’ve done it in other circumstances. I don’t know why we haven’t done it here. It’s an easy amendment, and in many respects, it would avoid potential workplace conflicts in organizations that employ, likely, more than half of all the workers in the federal sector. For us, that is the big issue. The rest would also be excellent, but that really is the critical issue for us at this point.

Ms. Ladd: Paid sick days have been a huge issue for the last two years. I don’t think I’ve gone through a single day during the pandemic where paid sick days has not come up for workers: who has it, who don’t have access to it and the critical need for it. There is a particular sense of urgency right now. This should have happened a couple of years ago, to be honest, at every single provincial level and at the federal level, but here we are, and it needs to happen as soon as possible.

Essentially, there aren’t many quibbles with the bill. I think you’ve got just a couple of amendments that are really quite critical. Paid sick days, in particular, is something that we could easily just get rid of and not ask for them. Then, of course, there is the accrual and that workers should get them immediately.

I would say to Mr. Hynes’ situation around the stacking, I think the biggest issue there is not just that they’re comparable but that the benefits are equal so that workers are not getting less than what is needed. But especially if they’re equal but not comparable, I think the language there just needs to get sorted out.

I do think it’s important that we move fast on paid sick days. Workers are in desperate need of them, and we shouldn’t have any workers feeling like they should be going to work while they’re sick, which is what is happening right now. We have to push the provinces to make sure that they are bringing in a permanent paid sick day policy. That initiative by the federal government is actually quite critical right now.

Ms. Pasma: I agree with Ms. Ladd that it’s disappointing that this bill wasn’t brought forward in April 2020. That would have been a better timeline, but since it wasn’t, now is the best time. We need it to be implemented urgently. We don’t need to spend months consulting to get the bill perfect. Flawed access to sick days is better than no access to sick days.

Having said that, I think this bill can easily be fixed. The amendments it requires are not deeply complex or technical. It can be easily fixed. The recent news about Omicron potentially doubling the rate of cases every three days only increases the urgency in the coming weeks. We absolutely need people to stay home when they are sick. We need to do everything we can to make sure they are empowered to stay home when they are sick.

Senator Martin: Thank you. This is potentially our final week. I’m looking at the timeline since we’re talking amendments, and both houses have to look at this. As you said, this should have been done earlier, but here we are. Thank you.

Senator Dasko: My question was actually very similar to Senator Kutcher’s, so I’d like Ms. Ladd to fill in a couple of gaps on Bill 148. What was the fate of Bill 148? It came in, but it was completely repealed by the new government. Could you give me a time frame on that? You said there were no abuses, but you also said there was lower uptake in Ontario than had been expected. Can you elaborate on that a little bit? Finally, in your view, was it a model bill which a province should implement?

Ms. Ladd: Bill 148 was in existence for the year of 2018, and you’re absolutely right that when the Ford government came into power in June 2018, it passed Bill 47, which then repealed the two paid sick days and actually made it more difficult for workers to have access to their 10 personal emergency leave days. They reduced the number of sick days workers could get, even though they were unpaid, and it brought back sick notes as well. As of January 1, 2019, all of the initiatives to increase worker protections for those in precarious employment were taken away.

In terms of barriers to access, I was talking about how the Ford government’s introduction of temporary paid sick days, which were introduced in May of this year, to give workers access to three temporary paid sick days financed by the government were only COVID related. That means if you were sick for any other reason, you would not have access to them.

With these paid sick days, what we’ve found is that the uptake has only been for workers asking for the day off for vaccinations. Instead of just taking a paid sick day, workers have to negotiate it with their employer and say, “This is my temporary paid sick day.” Because they feel like they have to get permission, people only feel comfortable taking it for vaccinations, which is considered to be more acceptable by employers. That is why we are seeing less uptake in accessing the program.

In terms of abuse, during the year of 2018, when we had the PEL program in existence, we didn’t see any reports of abuse. In fact, health professionals came out that year talking about the need for 10 permanent, seamlessly accessible paid sick days. Now they are pushing an additional 14 during a health crisis like a pandemic. That is what would be considered to be a robust paid sick day policy. We don’t see any other paid sick day policies in situations where there is an accrual, so health professionals are pushing for immediate access to a minimum of 10 paid sick days, no sick notes being required and an additional 14 sick days during a pandemic. This would be considered to be a stamp of approval by health professionals.

Senator Dasko: Thank you so much. That is really helpful. I’m interested in reading the transcript of this meeting so I can fully understand all the information you have given us. Thank you.

The Chair: Thank you, colleagues and senators. I believe we are going to wrap up this meeting. I would like to thank all of our witnesses, Ms. Ladd, Ms. Pasma and Mr. Hynes, for their wisdom and insight into our pre-study. Additionally, I would like to thank Mr. Hynes for forwarding his three amendments to us. They will be circulated to all committee members.

Senators, we will be meeting tomorrow in camera at 2:30 p.m. for a discussion of the draft report on our pre-study.

(The committee adjourned.)

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