Original Article: Lisa Cumming, Canadian Lawyer | Feb. 28, 2018
Lawyers in New Brunswick are showing support for bill 44, but the lack of specifics has them questioning what the finished legislation will actually look like.
The bill, introduced by the province's Minister of Labour, Employment and Population Growth, Gilles LePage, would, among other things, amend the Employment Standards Act to include leave provisions for victims of domestic, intimate and sexual violence.
Decisions around the period of time allotted to this type of leave, “the purposes for which domestic violence leave may be taken,” the verification, if any, that employees are required to give employers and if this leave will be paid or unpaid has been left up to regulations.
“[Bill 44] introduces the idea of domestic violence leave, but it actually has a lot of information that’s missing that’s set to be decided in regulations,” says New Brunswick employment, labour, human rights and administrative lawyer Jessica Bungay, a partner at Cox & Palmer in Fredericton. “In terms of does [bill 44] go far enough, it's really hard to say because they don't even specify the length of the leave, whether it’s going to be unpaid paid or a combination of both, so it’s very preliminary at this point in time to say whether it's enough.”
Stéphanie Bilodeau, communications director for New Brunswick’s department of post-secondary education, training and labour, wrote in an email that the department is conducting a 60-day consultation post-introduction of bill 44 with “targeted stakeholders to seek their input regarding potential leave provisions for the domestic, intimate partner or sexual violence leave, similar to the provinces of Manitoba, Ontario, Alberta and Saskatchewan.”
Bilodeau wrote that, after the consultation period, “government will introduce regulatory amendments that will address the elements of the leave provisions.”
Labour, employment and human rights lawyer Kelly VanBuskirk, a partner with New Lawson Creamer in Saint John, says that without clarification the amendment to include domestic violence leave could be problematic for both employers and employees.
“Without greater clarity through regulations, employees and employers will have difficulty knowing how to provide the leave provisions, so that could be a detriment to the employees who would otherwise benefit,” he says. “I think it can be cured in regulations, but there has to be attention paid to those details to ensure that those employees and employers have clarity on how to make use of the new legislation.”
Bungay says she doesn’t have any concerns about the bill at present time.
“This is something that we’ve seen as a trend across Canada that these types of leaves are being introduced. There’s a handful of other provinces that have them . . . they are relatively new,” she says. “Some provinces, they have paid [domestic violence] leave. Others have unpaid leave or have a combination of both, so it depends on how [bill 44] is structured and how employers have to deal with that, but the leave in and of itself is designed to address a need that’s out there that's currently unaddressed.”
But, she says, a big challenge for employers will be keeping the information surrounding the circumstances of the leave private and confidential.
The challenge for employers is to ensure that they’re implementing a structure so that employees feel they work in a safe place where they can ask for leave and be confident that their private life won’t be known throughout the workplace, she says.
Kelly says that the amendments to make specific protections, as long as they’re properly defined, are a good thing.
“It seems that [the amendments] will be beneficial to anybody who finds themselves in that situation,” he says. “So, provided that the government issues the clarity that will be needed for the general provisions through regulation, then I think it should be a beneficial amendment for those people who are suffering domestic abuse.”