Government of Alberta Releases Amendments to the Employment Standards Regulation

In early December 2017, the Government of Alberta released the Employment Standards Amendment Regulation, Alta 246/2017. This regulation outlines a number of changes to the current Employment Standards Regulation, Alta Reg 14/1997 (the "Regulation"), as well as changes to our recently amended Employment Standards Code, RSA 2000, c E-9 (the "Code"). Many of these changes are the follow-up to the revisions of the Code<e/m> brought about by Bill 17.

While there are a number of changes to both the Code and the Regulation in this new amendment regulation, the most notable changes are as follows:

1. The language describing certain groups of employees who are exempt from the minimum standards in the Code was revised. These changes apply to positions regulated under the Securities Act, the Insurance Act, the Chartered Professional Accountants Act, the Health Professions Act, and the Agrology Professions Act. A minimum wage related change was also made to employees in work experience programs approved by the Minister of Advanced Education.

2. Employers are no longer entitled to make any deductions or to receive payment out of earnings related to employees' uniforms.

3. The Regulation establishes two kinds of hours of work averaging agreements, which are part of the legislative framework that replaced the compressed work week language in the Code.

    1. Averaging Agreements - Under these agreements, with the agreement of an individual employee, or the majority of a group of employees, employers can establish work schedules over a multi-week cycle that average 44 hours a week over the cycle. The cycle cannot be longer than 12 weeks and maximum daily hours of work cannot exceed 12 hours. Overtime is payable based on the greater of (i) the amount of daily overtime hours worked in excess of scheduled daily time on any day in the cycle, or (ii) hours worked in excess of an average of 44 hours per week over the cycle. If these agreements apply to a group of employees, then they must be posted on an employer's website and in the workplace.
    2. Flexible Averaging Agreements - These are only available based on the request of an employee who regularly works at least 35 hours per week. They cannot be imposed on a group of employees simply because the majority of the group agrees. Unlike Averaging Agreements, which provide for overtime for employees who work more than the scheduled hours in a day, these flexible agreements allow employers set a daily overtime threshold. The agreement must also specify an averaging period that cannot exceed 2 weeks. The overtime threshold can be an amount greater than the hours an employee is normally scheduled to work, but cannot be any more than 10 hours in a day. For example, while an employee might only have eight hours of work scheduled on a given day, their overtime threshold could be 10 hours for that day. Overtime is paid for the greater of (i) the hours worked in excess of the overtime threshold on any day, or (ii) hours over 44 in a week, unless the averaging period is two weeks in which case overtime is paid on hours over 88 in the two weeks.

      The hours of work that fall outside of an employee's scheduled hours of work, but are not overtime as set out in the preceding paragraph are called "Flexible Time". If an employee works Flexible Time, then that employee must either be provided with time off with pay at the employee's normal wage rate for the hours worked during the averaging period, or be paid at the normal wage rate. 


Importantly, both kinds of averaging agreements now require an employer to specify an employee or group of employees' work schedules, including work days and the number of hours to be worked on those days. Those schedules will need to be included in agreements, meaning that those schedules will be fixed for the life of the agreement. In the case of the Averaging Agreements, there is an ability to temporarily change that schedule on notice. That power is not however present for Flexible Averaging Agreements.

Both kinds of agreements are also subject to cancellation on 30 days' notice by either party. In the case of Averaging Agreements involving a group of employees, a majority of employees is required to cancel an agreement. Any cancellation must also be done in accordance with a collective agreement if in place.

4. The Regulation now list what kinds of variances or exemptions the Director can issue from the minimum standards outlined in the Code. The criteria used by the Director to evaluation applications by employers for variances or exemptions are also outlined in the Regulation. Variances or exemptions can extend the maximum hours of work in a day, the maximum number of consecutive work days, and the duration of an averaging agreement. They could also reduce in the minimum hours of pay required for an employee.

5. The section of the Regulation concerning "Adolescents and Young Persons" has been replaced with a new section titled "Employment of Individuals Under 18 Years of Age". The restrictions regarding when 13 to 17 year olds can work have generally been maintained, with some changes to when 15 year olds can work.

Notably, the Regulation does not contain a definition for what constitutes "light work", which is one of the two categories of work that 13 to 17 year olds are entitled to perform under the recent revisions to the Code. Rather, the Director is required to establish a list of the types of work that fall under that definition.

6. Medical certificates that employees are required to provide as a part of requests for certain kinds of leave may now be issued by a nurse practitioner.

7. The maternity and parental leave provisions in the Code have been amended. Maternity leave can now occur starting at any time during the 13 weeks immediately before the estimated date of delivery. Parental leave has increased to 62 weeks, which is some cases can be taken within 78 weeks after a child is born or is placed with an adoptive parent. This change relates to recent EI changes regarding parental leave (See our update of November 27, 2017 on "Upcoming Employment Insurance Benefit Changes to Parental Leave - How it May Impact Employers").

8. The Critical Illness of a Child Leave that was introduced this year as part of the amendments to the Code has been substituted with a new "Critical Illness Leave". This new leave allows employees to take unpaid leave to provide care or support to a critically ill child or adult family member. Employees are entitled to up to 36 weeks of leave for providing care to a critically ill child, or up to 16 weeks to provide care to a critically ill adult.

9. A number of changes were made to the Regulation related to the introduction of the new administrative penalties that can be levied against employers that are in contravention of the Code. This includes outlining the cost of appealing any administrative penalties. This also includes the establishment of a schedule of administrative penalties, which delineates the minimum penalties payable in certain circumstances. Those penalties range from $500.00 to $6,000.00 depending on the conduct at issue and the number of violations.

10. Group termination notices no longer need to be provided for employees who work on a seasonal basis, or who work for a defined term or task.

These amendments, with the exception of the provisions regarding youth employment, come into effect on January 1, 2018. The youth employment related provisions are deemed to have been effect since Bill 17 received royal assent on July 7, 2017. While employees' entitlement to leaves may not come into effect until January 1, 2018, it is important to note that as of that day, an employee can make a request for any of the new types of leaves even if the circumstances giving rise to that leave occurred before January 1, 2018.