New Brunswick Employment Law

Duration of Annual Leave – An employee who has less than 8 years of employment with the employer is entitled to an annual leave of the lesser of the following two options:

• • • at least 1 day for each month worked, or
    • at least 2 weeks of annual leave per year.

An employee who has more than 8 years of employment with the employer is entitled to an annual leave for the lesser of the following two options:

• • • • at least 1.25 days for each month worked, or
      • at least 3 weeks of annual leave per year.

Timing of Annual Leave – An employee is entitled to take annual leave after completing 1 year of service with the same employer. The employer must give the employee their annual leave no later than 4 months after earning the annual leave time. Employers and their employees can agree on when annual leave should be taken. If an agreement cannot be reached, the employer can decide when the employee’s annual leave will begin as long as they provide the employee at least 1-week notice prior to the vacation start date.

Annual Leave Pay –

• An employee who has less than 8 years of employment with the employer is entitled to receive an annual leave pay equal to 4% of the gross wages (before deductions).
• An employee who has 8 or more years of employment with the employer is entitled to receive an annual leave pay equal to 6% of the gross wages (before deductions).

In both cases, the employee must receive all his accumulated vacation pay at least one day before his vacation begins. An employee shall be deemed to have worked on a day of vacation and a public holiday for which the employee was paid.

For the purposes of calculating Vacation Pay, Overtime Pay is included but Stat Holiday pay is not included. Vacation pay year means the period from the first day of July to the last day of June.

Annual Leave upon Termination of Employment – An employee who is terminated or quits before taking annual leave is entitled to receive all outstanding annual leave pay when the employment ceases. Payment must be made when the employee receives his final pay cheque. Employment Standards Act, § 24-27 and 44.

A pregnant employee is entitled to up to 17 weeks of unpaid leave or a shorter period (as requested by the employee) which must be taken after the start of the thirteenth week and before the expected birth date. The pregnant employee must inform the employer at least four months prior to the date of the delivery or when the pregnancy is confirmed, whichever is later, of the intent to take leave and the commencement date in the absence of an emergency.

In the absence of an emergency, the pregnant employee should provide at least two weeks of notice to the employer of the commencement date of the leave. The employer may also allow for the absence of leave before or after the period as mentioned in the first paragraph, in case the employee’s work is materially affected because of the pregnancy.

After the expiration of the maternity leave, the employee must be allowed to resume work in the position immediately held before (not the alternative employment) or any other position without a decrease in the pay, or any other benefits. Employment Standards Act § 42-44.

An employee is entitled to up to 62 consecutive weeks or a shorter period of unpaid leave as may be requested by the employee if the employee:

• • • is a natural parent of a new-born or an unborn child, or
    • has adopted or is adopting a child.

An employee intending to take leave must provide the employer with a certificate of a medical practitioner, nurse practitioner, or midwife specifying the date upon which delivery will, in the medical practitioner’s, nurse practitioner’s or midwife’s opinion, occur or the date upon which the birth has occurred. An employee in the absence of an emergency is required to give four weeks written notice to the employer of the commencement date and duration of the leave.

The leave of absence will begin on the date that the newborn or adopted child came into the employee’s care and custody and will end 78 weeks after that date. If both parents are employees, the leave of absence granted may be taken wholly by one of the employees or be shared by the employees.

The aggregate amount of leave that may be taken by two employees under this section with respect to the same birth or adoption shall not exceed 62 weeks. The aggregate amount of leave that may be taken by one or two employees under this law and for maternity with respect to the same birth shall not exceed 78 weeks.

If both parents are employees, the leave of absence may be taken wholly by one of the employees, or be shared by the employees. The aggregate amount of leave that may be taken by two employees with respect to the same birth or adoption shall not exceed 62 weeks. Employment Standards Act § 44.02.

Duration of Sick Leave: An employee is entitled to up to 5 working days of unpaid sick leave during each calendar year.

Eligibility Criteria of Sick Leave: Employees are eligible for sick leave if they’ve been employed for at least 90 days with the same employer.

Medical Certificate: If an employee requests a leave of absence that is 4 or more consecutive calendar days in length, the employer may require the employee to provide the employer with a certificate of a medical practitioner, nurse practitioner, or midwife certifying that the employee is incapable of working due to illness or injury.

The employee must inform the employer of the anticipated duration of the leave. Employment Standards Act § 44.021.

An employee is entitled to 3 days of unpaid leave in a 12 calendar month period to meet responsibilities related to the health, care, or education of a person in a close family relationship with the employee. The employee must inform the employer of the anticipated date and duration of the leave. Employment Standards Act § 44.022.

An employee is entitled to leave without pay for any period as a result of being –

• • • Summoned to serve on a jury,
    • Selected to serve on a jury, or
    • Served with a summons to attend at the hearing of the action, application, or proceeding as a witness.

If the employer provides leave with pay in the above circumstances, then the employer may require the employee to reimburse for any amount that the employee received as a jury or witness fees and this will not include the compensation received by the employee for food, travel, or accommodation purposes. Employment Standards Act § 44.023.

An employee is entitled to 28 weeks of unpaid leave to provide care or support to a person with whom the employee has a close family relationship if a qualified medical practitioner issues a certificate stating that the person with whom the employee has a close family relationship has a serious medical condition with a significant risk of death within 28 weeks.

The leave begins from the first day of the week either when the certificate was issued or when the leave was commenced in case of non-issuance of the certificate. The leave end date will end on the last day of the week in which the earlier of the below occurs: –

• • • The related person dies;
    • The expiration of the 28 weeks from the date leave began.
    • The leave may only be taken in a period of at least a one-week duration.

The aggregate amount of leave that two employees can take for the care of the same person should not increase the 28 period. The employee must provide the employer with the certificate within 15 days after return to work.

An employee intending to take a leave of absence shall advise the employer as soon as possible of the employee’s intention to take the leave, the anticipated commencement date of the leave, and, the anticipated duration of the leave. Employment Standards Act § 44.024.

An employee is entitled to 37 weeks of unpaid leave to provide care or support to a child if the certified medical practitioner

states that the child is a critically ill child and requires the care or support of one or more of his or her parents or other family members, and sets out the period during which the child requires that care or support. The start date of the absence of leave begins on:

• • • The first day of the week when the certificate was issued; or
    • The first day of the week is when the medical practitioner certifies that the child is a critically ill child.

The end date of the leave is decided based on the below, whichever occurs first:

• • • • The child dies; or
      • The expiration of the 37-week period starts from the first day of the week as stated above.

The aggregate amount of leave shall not exceed a 37-week period in case both the parents or other family members are employees of the same employer. Also, this leave period can be availed either by one wholly or can be shared. In the case of uncontrollable circumstances, the employee must inform the employer in writing of the change in the period.

The employer is not required to extend the leave beyond the date that would exceed the 37-week period. After the expiration of the leave, the employer should permit the employee to work at the same or equivalent position without any decrease in pay or any other benefits. Employment Standard Act § 44.025.

An employee is entitled to 16 weeks of unpaid leave to provide care or support to a critically ill adult if the certified medical practitioner states that the adult is a critically ill adult and requires the care or support of one or more of his or her parents or other family members, and sets out the period during which the adult requires that care or support. The start date of the absence of leave begins on:

• • • The first day of the week when the certificate was issued; or
    • The first day of the week is when the medical practitioner certifies that the adult is a critically ill adult.

The end date of the leave is decided based on the below, whichever occurs first:

• • • • The adult dies; or
      • The expiration of the 16-week period starts from the first day of the week as stated above.

The aggregate amount of leave shall not exceed the 16-week period in case both the parents or other family members are employees of the same employer. Also, this leave period can be availed either by one wholly or can be shared. In the case of uncontrollable circumstances, the employee must inform the employer in writing of the change in the period.

The employer is not required to extend the leave beyond the date that would exceed the 16 week period. After the expiration of the leave, the employer should permit the employee to work at the same or equivalent position without any decrease in pay or any other benefits. Employment Standards Act § 44.0251.

An employee is entitled to 37 weeks of unpaid leave in case of the death or disappearance of the child as a result of a crime.

The leave begins on the date on which it is discovered that the child has died or has disappeared as a result of a crime and will end after 37 weeks from the date on which such discovery was made. An employee is not entitled to a leave of absence if the employee is charged with a crime.

If within 37 weeks of disappearance, the child has been found alive, then the leave ends after fourteen days of such discovery and in case found dead, the leave period will end after thirty-seven weeks of such discovery.

If a child who has disappeared is found alive during the 37-week period, the leave of absence ends 14 days after the day on which the child is found. If a child who has disappeared is found dead during the 37-week period, and it is probable, considering the circumstances, that the child died as a result of a crime, the leave of absence ends 37 weeks after the day on which the child is found.

In case the disappearance or the death of the child is not a result of the crime, the employees are eligible for 14 days unpaid leave unless there is an agreement between the employer and employee on an earlier date of return.

If both employees are employed under the same employer, each one is eligible for the leave, and in case any of them is charged as a criminal, then the leave cannot be availed by that parent. In the case of uncontrollable circumstances, the employee must inform the employer in writing of the change in the period.

The employee is not required to grant leave beyond the date of expiry of the 37 week period. The employees must be permitted to resume work without any decrease or reduction in benefits as held by them before the leave was granted. Employment Standards Act § 44.026.

An employer shall grant the employee, who has been in continuous employment for more than 90 days, domestic violence leaves, an intimate partner violence leave or sexual violence leave on the request of an employee, The total number of leaves an employee can take, in each calendar year, shall not exceed the below:

• • • Up to 10 days, which the employee may take intermittently or in one continuous period, and
    • Up to 16 weeks in one continuous period.

How to leave of Absence to be Paid

If an employee is granted leave, then the employee is entitled to take the first 5 days as paid leave and the balance as unpaid leave. An employee should be paid for the paid leave, an amount equal to the wages an employee would have earned if the employee had worked the regular hours of the work for the applicable period.

If the employee’s wages vary from day to day, then the employee should be paid an amount at least equal to the employee’s average daily earnings exclusive of the overtime worked during the 30 calendar days immediately before the applicable period. Employment Standards Act § 44.027.

An employer must grant an employee a leave of absence during the current state of emergency and any future state of emergency or threats to public health. The government may make regulations regarding matters such as:

• • • The eligibility requirements for emergency leaves,
    • The purposes for which the leave may be taken, and
    • Whether the leave may be taken as paid or unpaid.

An employer shall grant an employee a leave of absence in any of the following circumstances:

• • • • When the Minister of Public Safety declares a state of emergency under the Emergency Measures Act in respect to all or any area of the Province;
      • When the Governor in Council declares a public welfare emergency, a public order emergency, an international emergency or a war emergency under the Emergencies Act (Canada);
      • When the Governor in Council makes an order under section 58 of the Quarantine Act (Canada) in any circumstance relating to a notifiable disease prescribed by regulation under the Public Health Act or declared to be a notifiable disease in an order of the Minister of Health or the chief medical officer of health, as the case may be, a notifiable event prescribed by regulation under the Public Health Act, or any other threat to public health.

Employment Standards Act § 44.028.

An employee is entitled to leave up to five consecutive calendar days on the death of a person in a close family relationship.

The leave must be taken during the period of bereavement which begins on the day of the funeral. An employee should notify their employer as soon as they can regarding their intended leave and the planned commencement of the leave period. Employment Standards Act § 44.03.

An employee who is a member of the Reserves is entitled to  24 months of leave of absence within any 60-month period if :

• • • In the case of first leave, the employee has been in the employ of the employer for at least 3 months;
    • In the case of second or subsequent leave, at least 12 months have elapsed since the date the employee returned to work from the most recent leave granted by the employer for the purpose of service.

An employee must provide notice to the employer of his intention to take leave in the below manner:

• • • At least 4 weeks before the commencement date of the leave, or
    • as soon as the employee receives the notice of the service or the annual training.

An employer may require the employee to provide the employer with a certificate from an official with the Reserves stating:

• • • The employee is a member of the Reserves and has been selected for service, and 
    • to provide expected start and end dates for the period of service.

An employer is not obligated to extend an employee’s leave beyond the total duration of  24 months from the initial commencement date of that leave. Employment Standards Act § 44.031.