Employment Standards

Overview

The Employment Standards Office serves the needs of both employers and employees by providing information and education on the rights of employees and the responsibilities of employers under the Northwest Territories Employment Standards Act

The Employment Standards Act and Employment Standards Regulations are the basic legal authority in the NWT, which sets out minimum employment standards and allows Employment Standards staff to legally enforce those standards.

The Employment Standards Act applies to most employees and employers that perform work in the Northwest Territories. The Employment Standards Act does not apply to:

  • Federal Government Employees
  • Territorial Government Employees
  • Workers in federally regulated industries such as airlines, banks, and most telecommunications operations.

Changes - Effective July 1, 2021

Amendments to the Employment Standards Act (the Act) and Regulations provide additional protection to NWT workers and flexibility to employers during the COVID-19 pandemic and future emergencies.

Emergency Leave

  • Provides job protection to NWT workers in the event of an emergency situation, such as the ongoing COVID-19 pandemic.
  • Allows workers to access unpaid leave when they are unable to work because of an emergency.
  • If the emergency affects a family member of an employee, the employee is entitled to emergency leave when:
    • the circumstance results in a situation where the family member of the employee requires care, child care or assistance;
    • the employee is the person most reasonably able under the circumstances to provide the family member with the required care, child care or assistance; and
    • providing the required care, child care or assistance to the family member has the effect of preventing the employee from performing the duties of their employment.
  • If an emergency exists due to a pandemic of a reportable disease, an employee is able to access the leave when the employee is unable to work because:
    • they are under medical investigation/supervision/treatment related to the reportable disease;
    • they are required to self-isolate or quarantine related to the reportable disease as a result of the direction of a health officer, health care professional or government agency;
    • they were directed by the employer not to work due to a concern that the employee could expose others to the reportable disease in the workplace;
    • they are required to care for a family member or dependent who is affected by the reportable disease; or
    • they are directly affected by travel restrictions related to the emergency, depending on the circumstances. 
  • Emergency Leave does not require an employee to have worked for an employer for any set amount of time in order to be eligible for the leave. 
  • The period of leave ends when the employee is no longer unable to work as a result of the emergency or when the emergency ends.
  • Employees applying for Emergency Leave are not required to submit a doctor’s note. However, an employer can request reasonable verification of the employee’s entitlement to the leave. What is considered reasonable will vary depending on the circumstance. 

Emergency Leave - COVID-19

  • An employee is entitled to unpaid Emergency Leave for COVID-19 when the employee is unable to work because:
    • they are under individual medical investigation, supervision or treatment related to the COVID-19 pandemic;
    • they are attending a clinic or appointment to receive a COVID-19 vaccination;
    • they are required to self-isolate or quarantine as a result of the direction of a health officer, health care professional or government agency;
    • they were directed by the employer not to work due to a concern that the employee could expose others to COVID-19 in the workplace;
    • they are required to care for a family member or dependent who is affected by COVID-19, including as a result of a school or day care closure; 
    • they are directly affected by travel restrictions related to the COVID-19 pandemic that were put into place after the employee began their travel and, in the circumstances, the employee cannot reasonably be expected to travel to their workplace; or
    • they are required to self-isolate as a result of essential travel.
  • Essential travel means:
    • medical travel or travel as a non-medical escort to a family member;
    • travel relating to the death of a family member of the employee;
    • travel relating to a critically ill family member of the employee;
    • travel necessitated by a written legal obligation, including travel required by a child custody arrangement and travel required by court orders; or
    • travel required by the employee in the performance of their duties as an employee.
  • An employee is not entitled to Emergency Leave as a result of self-isolation requirements due to non-essential travel.
  • Entitlement to Emergency Leave for COVID-19 is retroactive to March 18, 2020, when the territory-wide Public Health Emergency was declared under the NWT Public Health Act.
    • Employees who were terminated from their employment because they were unable to work as a result of COVID-19 may have grounds to file a complaint with the Employment Standards Office. Complaints for terminations due to COVID-19 that occurred between March 18, 2020 and June 30, 2021 must be received by the Employment Standards Office by January 2, 2022.
    • If you have a complaint, please contact the Employment Standards office to discuss.
  • While on Emergency Leave as a result of COVID-19, workers may be eligible to access the recovery benefits offered by the Government of Canada. 

Exception to Requirement for Group Termination Notice in an Unforseeable Event

  • Provides flexibility to employers and removes an additional hurdle in an already difficult time.
  • Allows for an exception to the legislated requirement to provide notice of group termination to the Employment Standards Officer and any applicable union when an unforeseeable event or circumstance that is beyond an employer’s control prevents them from respecting the relevant notice period in the Act.
  • Employees will retain their entitlement to individual termination notice or pay in lieu of notice (termination pay).
  • The exception only applies to situations beyond an employer’s control, such as the destruction or major breakdown of machinery or equipment, climatic or economic conditions, or emergencies, including a public health emergency.
  • In order for the exception to apply:
    • The employer must have exercised due diligence to foresee and avoid the cause of termination; and
    • The cause of termination must prevent the employer from respecting the periods of notice set out in Act.
  • An employer would still be required to provide notice of group termination to the Employment Standards Officer and any applicable trade union, as soon as possible.
    • The proposed exception would only affect the amount of notice required when an unforeseeable event prevented an employer from respecting the periods of notice set out in Act.
  • Upon receipt of insufficient amount of group termination notice from an employer, the Employment Standards Officer would make a determination whether the exception applied to the situation by verifying that:
    • the circumstances that prevented the employer from providing notice were truly beyond the employer’s control;
    • the employer exercised due diligence to foresee and avoid the cause of termination; and
    • the cause of termination prevented the employer from respecting the periods of notice set out in Act.
  • If it was determined that the exception applied to the situation, the Employment Standards Officer would waive, by order, the amount of notice of group termination required by the Act.
  • Any decision or order made by the Employment Standards Officer to waive the group termination notice periods in the Act will be served to the employer and any affected trade union.
  • The Employment Standards Officer is required to post a notice of their decision on the Employment Standards webpage.
  • The employer is required to post a copy of the notice at the worksite where possible or provide copies of the notice to affected employees, if it is not possible to post a notice at the worksite.

Other Regulatory Changes

  • Clarifies that if an employee is temporarily laid off, the temporary layoff period does not affect their continuity of employment. 
  • Includes a process by which a temporarily laid off employee can apply to the Employment Standards Officer to order the waiver of their entitlement to an annual vacation, which would require the employer to pay the employee vacation pay for the portion of annual vacation waived.

Question and Answers -Changes - Effective January 1, 2020

Do the changes affect pregnancy leave?

There is no change to the entitlement of pregnancy leave, which continues to be 17 weeks.

 

Was sharing of parental leave addressed before?

The amendment provides for sharing of parental leave and mirrors the approach in the Canada Labour Code while better aligning with the EI parental sharing benefit. It encourages parents to share parental responsibilities and time away from the workforce.

 

How do compassionate care leave and family caregiver leave differ?

Compassionate care leave is for employees to provide end-of-life care to family. The family member must be suffering from a serious medical condition with a “significant risk of death” within 26 weeks of the request for leave. Family caregiver leave is to care for “critically ill” or injured family members, but is not end-of-life care.

 

What is the definition of ‘critically ill?

Critically ill means a person whose baseline state of health has significantly changed and whose life is at risk as a result of an illness or injury.

 

Is there a service requirement to be eligible for compassionate leave?

No, employees are eligible from day 1 of employment.

Example

Dawn is employed and hasn’t used any compassionate leave in the previous 52 weeks. Dawn submits a request to her employer for 26 weeks of compassionate leave to care for her mother who is suffering from a serious medical condition. Dawn provides her employer with a medical certificate indicating her mother has a significant risk of death within the next 26 weeks. 

Because employees are eligible for compassionate leave from their first day of employment and Dawn has compassionate leave available to her, her employer approves her request.  Her period of leave begins Monday, May 4, 2020 and is expected to end on Saturday, November 7, 2020.

Sadly, on Tuesday, August 11, 2020, Dawn’s mother passes away. Dawn notifies her employer and makes arrangements to return to work. Her period of compassionate leave now ends on Saturday, August 15, 2020.

 

Is there a service requirement for family caregiver leave?

Employees must have worked for an employer for a minimum of 6 months to qualify.

Example

Darrel has been employed with the same employer for more than six consecutive months and hasn’t used any family caregiver leave in the previous 52 weeks. Darrel submits a request to his employer for 20 weeks of family caregiver leave to care for his critically ill daughter who is under the age of 18. Darrel provides his employer with a medical certificate indicating his daughter is critically ill and requires his care for 20 weeks.

Because Darrel meets the eligibility requirements and has family caregiver leave available to him, his employer approves his request. His period of leave begins on April 1, 2020 and he is expected to return to work on August 19, 2020.

On June 1, 2020, Darrel contacts his employer to request a further 20 weeks of family caregiver leave to care for the same critically ill daughter who is still under the age of 18. Darrel is only entitled to 17 more weeks of family caregiver leave to care for his daughter during this 52 week period, so his employer approves 17 weeks instead.

If Darrel’s daughter remains critically ill and under the age of 18, he his Family Caregiver Leave entitlement is reset and he can request 37 more weeks of leave in the 52 week period beginning April 1, 2021.

 

How is ‘family violence’ defined?

Family violence includes violence or the threat of violence against the employee or any child of or in the care of the employee. The definition matches the definition in the NWT Protection Against Family Violence Act.

 

In what situations can family violence leave be taken?

This leave could be taken to respond to varying situations of family violence. It could be used to seek medical attention, attend legal appointments or court appearances, obtain victim services, relocate to flee violence, or to attend counselling.

 

Example 1

Lucy has been employed with her employer for more than three consecutive months and hasn’t used any family violence leave within the calendar year. On Thursday morning, Lucy calls her employer to let them know she won’t be coming in to work that day. She is experiencing family violence and needs to seek medical attention and attend an appointment with her counsellor. On Friday morning, Lucy calls her employer to request a further day of paid family violence leave to attend an appointment with a lawyer.

Because Lucy meets the eligibility requirements and has family violence leave available to her, her employer should grant the leave and ask her to bring verification upon her return to work.

Lucy returns to work on the following Monday with a medical note for Thursday and a letter from her lawyer indicating she required their services on Friday.

Lucy’s employer should pay her for the wages she would have earned on Thursday and Friday had she not taken the leave. If Lucy’s regular hours of work vary from day to day or she is paid on a basis other than time, she is entitled to two average day’s pay. Please contact the Employment Standards Office directly at 1-888-700-5707 for further information about how to calculate an average day’s pay.

 

Example 2

Sarah has been employed with her current employer for more than one consecutive month and recently took two days off work using unpaid family violence leave. Sarah provided her employer with advance written notice requesting five weeks of family violence leave to relocate herself and her children to a family violence shelter in another community. In addition to accessing supports through the shelter, Sarah and her children need to reside in the other community to participate in legal action. Sarah expects to live at the shelter for five weeks. 

Because Sarah meets the eligibility requirements, has provided advanced written notice and has unpaid family violence leave available to her, her employer should grant the leave and may ask her to bring verification upon her return to work.

 

What’s the difference between days and weeks of family violence leave?

The days vs. weeks of leave are to respond to different situations:

Ten days of leave may be taken on an emergency basis without needing to give prior notice to the employer if it is not possible. The days may be taken at any time, and do not need to be taken consecutively. The first five days are paid and the remaining five days are unpaid.

The 15 unpaid weeks of leave are to address ongoing family violence situations. To take the weeks of leave an employee must give prior written notice to their employer. The weeks may be taken in separate periods, but each period of leave must be at least one week long. Employers must ensure that all records relating to an employee taking family violence leave are kept confidential.
 
What is meant by “reasonable verification”?
“Reasonable verification” can be flexible and could include a note from a counsellor, a court document, a medical note, or anything else suggesting the leave is required. This ensures that the leave is accessible.

An employee must provide an employer with ‘reasonable verification’ that the leave is required to access paid family violence leave. An employer may also require an employee to provide reasonable verification of the necessity of unpaid leave, but this is optional for the employer to request.
 

Documents

Employment Standards Fact Sheet: Know your rights and responsibilities

Recent Updates to the Act due to COVID-19 (2021)

Family Violence Leave fact sheet

Family Caregiver Leave fact sheet

Employment Standards Act amendments fact sheet (2020)

Frequently Asked Questions

Service Standards