Federally regulated employers in the private sector should mark their calendars for September 1, 2020, when changes to the Canada Labour Code (“Code”) and the new Standards for Work-Integrated Learning Activities Regulations (the “Regulations”) will come into force.
These upcoming legislative changes are part of the federal government’s ongoing modernization of the Code. The federal government first introduced changes to the Code that limited unpaid internships in the federally regulated private sector back in December of 2017. Almost three years later, these changes will come into force.
As of September 1, 2020, unpaid internships in the federally regulated private sector will be limited to those that are part of an educational program. The legislation refers to these internships as “work-integrated learning placements”. Employers of students in work-integrated learning placements can choose to pay a student intern on a voluntary basis by way of a stipend or monthly allowance.
While these student internships can be unpaid, the students will still be entitled to certain labour standards protections, as set out in the Regulations. The new Regulations set out the following:
- the educational institutions at which the student can be fulfilling the requirements of an educational program through an internship;
- the documentation required to support a student placement that can be unpaid;
- the labour standards protections for students in work-integrated learning; and
- related administrative requirements.
Students in work-integrated learning placements will now be eligible to receive the following labour standards protections:
- Standard hours of work: student interns are subject to the same standard hours of work rules as federally-regulated employees (8 hours per day, 40 hours per week, and entitlement to one full rest day per week). However, since student interns are not eligible for overtime pay, employers cannot require them to exceed the standard hours of work set out in the Code.
- Modified work schedule: with the approval of the student intern, employers may establish a modified work schedule.
- Maximum hours of work: student interns may undertake both an unpaid internship to fulfill the requirements of an educational program and paid employment with the same employer. However, the total hours of both positions must not exceed 10 hours per day or 48 hours per week (with different rules in the case of a modified work schedule).
- Breaks and rest periods: student interns are entitled to 30 minute breaks for every five consecutive hours of work, breaks for medical reasons, breaks for breastfeeding, and rest periods of at least eight hours between shifts.
- Notice of Shift Changes and Work Schedules: employers must inform student interns in writing at least 24 hours before they make a change to the student intern’s scheduled shifts. Employers must also provide student interns with their schedule in writing at least 96 hours before the start of their first shift. Student interns have the right to refuse a shift that starts within 96 hours from the time that the schedule is provided to the student intern.
- Employees Under 17: there are restrictions on hiring student interns under 17 years of age.
- General Holidays: student interns must receive time off for general holidays.
- Protected Leaves of Absence: student interns are entitled to take personal leave, leave for victims of family violence, leave for aboriginal practices, bereavement leave, medical leave, and leave for work-related illness or injury. The notice and documentation requirements are the same as for federally regulated employees.
- Maternity-Related Assignment: if the student intern is pregnant or nursing, she has the right to make a request to her employer to modify her activities if she provides a certificate from a healthcare practitioner stating that her duties cause a risk to her health or that of her child. The employer must either accept to modify her activities or else provide reasons in writing explaining why this is not reasonably practicable. The student intern is entitled to leave while awaiting a response. Unlike federally related employees, student interns are not entitled to a leave of absence if: modifying the activities is not possible, or a health care practitioner determines that the student intern is unable to continue activities because of the pregnancy or nursing.
- Protections Against Reprisals: employers cannot retaliate against student interns for exercising their rights under Part III of the Code (Standard Hours, Wages, Vacation and Holidays).
- Protection Against Sexual Harassment: student interns are covered by the Code prohibitions against workplace sexual harassment. This protection will soon be replaced with the detailed workplace harassment and violence amendments to the Code, which will come into force on January 1, 2021.
Federally regulated employers in the private sector who hire interns outside of this work-integrated learning placement context should be aware that such interns will be employees for the purposes of the Code. This means that all of the labour standards protections in the Code, including the right to be paid at least the minimum wage, will apply to those interns.
The legislative changes described above will only apply to employers and student interns in the federally regulated private sector (e.g. air transportation, banks, First Nations Band Councils, interprovincial railways and road transportation, and telecommunications). However, provincially regulated employers in B.C. should also be aware of their obligations when hiring interns. For the most part, unpaid internships will not be compliant with the B.C. Employment Standards Act. There is a very narrow exception for students hired to work in practicums, which are required as part of a formal education process for students enrolled in a public or private post-secondary institution and which will result in a certificate or diploma. The B.C. Employment Standards Branch does not consider such practicums to be “work”, and as a result, they can be unpaid.
If you have any questions about how these recent changes to the Code may impact your workplace, or if you want to discuss whether your workplace is in compliance with the new and upcoming changes to the Code, please contact Cory Sully or any member of the Lawson Lundell Labour, Employment and Human Rights Group.
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