CBSA is using the 6990 leave code to cover employees who are unable to work for various COVID-related reasons including the closure of schools and daycares (Note: “Other Leave with Pay” is coded as 699 within the core Treasury Board units).
Where telework is available, parents with young children at home have not been expected to put in the same number of working hours as members who do not have childcare responsibilities. Some parents have been putting in a few hours a day and some haven’t been working at all. Generally speaking, the availability of 6990 to cover non-working hours has been assessed on a case-by-case basis and, for the most part, our members haven’t had too many problems accessing this leave with pay.
In May, some provinces and territories began to talk about re-opening schools and daycares. The decision on what, when and how to reopen has varied widely across the country. Some provinces have chosen to not to reopen until the Fall, while others have limited childcare spaces to parents who work in essential services. Even where schools have reopened, many parents have chosen not to send their children back because of safety concerns.
On May 10, 2020 Treasury Board sent an email to all of its Heads of Human Resources regarding 699 leave and childcare. It contained the following:
As schools and daycares are re-opened, we expect that employees who could not work due to childcare obligations will be able to return to work. We recognize, however, that there will be some instances where employees may be unable to work their full hours if their children are unable to return to school or daycare due to health reasons, limited availability of spaces or other restrictions put in place by provincial or territorial authorities. In these cases, employees may use ‘Other Leave With Pay (699)’ for hours not worked, if they are unable to make alternate childcare arrangements.
The email goes on to encourage managers to “have a conversation” with employees on 699 about the possibility of taking on flexible working arrangements as an alternative to staying on leave.
Policy Grievance
On 13 May 2020, the PSAC filed a policy grievance regarding the employer’s email. The union is concerned that parents who choose not to return their children to school or daycare will be involuntarily taken off the 699 leave with pay. Some children live in households with vulnerable family members, and many parents do not feel comfortable sending their children back to school or daycare with inadequate social distancing measures in place. Whatever the reason, we need to ensure that members with childcare obligations are not forced to choose between a pay cheque and the wellbeing of their families.
We expect to receive the employer’s final level reply on this policy grievance within the next few weeks.
Individual Grievances
In the event that we are unsuccessful in resolving the problem with a policy grievance, we need to be prepared to file individual grievances for any members who are forced off 6990 but still have childcare responsibilities. These are members who:
- Currently care for children at home
- Are currently on 6990 Leave with Pay
- Live in a province/territory where childcare facilities have not reopened OR cannot get a childcare space due to limited reopening OR have safety concerns for their children or other vulnerable family members
- Have been advised by the employer that they are no longer eligible for 6990 Leave with Pay
The grievance language is as follows:
Details:
I grieve the Employer’s refusal to grant me “6990 leave” with pay, requested on [insert request date] and denied on [insert refusal date], when I was unable to work regular hours due to childcare responsibilities related to COVID-19.
(If you are under the Program and Administrative Services (PA) collective agreement, insert:)
This is a violation of Article 53.01 – leave with or without pay for other reasons and Article 19 – no discrimination of the collective agreement; section 7 of the Canadian Human Rights Act; and all other relevant articles.
(If you are under the Border Services (FB) collective agreement, insert:)
This is a violation of Article 52.01 – leave with or without pay for other reasons and Article 19 – no discrimination of the collective agreement; section 7 of the Canadian Human Rights Act; and all other relevant articles.
(If you are under the Operational Services (SV) collective agreement, insert:)
This is a violation of Article 56.01 – leave with or without pay for other reasons and Article 19 – no discrimination of the collective agreement; section 7 of the Canadian Human Rights Act; and all other relevant articles.
(If you are under the Technical Services (TC) collective agreement, insert:)
This is a violation of Article 55.01 – leave with or without pay for other reasons and Article 19 – no discrimination of the collective agreement; section 7 of the Canadian Human Rights Act; and all other relevant articles.
Corrective Action Requested:
A declaration that the Employer has breached the collective agreement;
That I be granted leave with pay when I am unable to work regular hours due to childcare responsibilities related to COVID-19;
That I be compensated for all losses, including lost wages and benefits, that resulted from the Employer’s refusal to grant me paid leave;
That the Employer ceases this discriminatory refusal and take measures to redress the practice and/or to prevent the same or similar refusal from occurring in the future;
That the Employer makes available to me the rights, opportunities, and privileges that are being or were denied as a result of the refusal;
That I be compensated $20,000 for pain and suffering experienced as a result of the discrimination;
That I be compensated $20,000 for the Employer’s willful and reckless engagement in the discriminatory practice;
That the filing of this grievance not prejudice me in any future dealings with the Employer;
That I be made whole;
Any other redress deemed appropriate.
Union representatives who receive a concern from a member with childcare responsibilities who has been refused 6990 leave are asked to assist the grievor in completing their grievance form as outlined above. Do not submit the grievance to the employer until after the employer’s final level reply to the policy grievance has been issued unless you need to protect the 25-day timeline.
We will advise the NBoD of the decision as soon as it is available and (if necessary) give the green light for the submission of any grievances you have received to date.
General 6990 Issues
We expect that the employer will wait until a decision on the policy grievance is issued prior to attempting to remove some employees from 6990 leave. Members may be approached in the meantime, however, to “have a conversation” about their childcare needs. In particular, the employer may inquire as to whether these members are able to complete a certain number of hours a week rather than remain full-time on leave with pay (6990).
Our members have an obligation to answer the employer’s questions truthfully and to the best of their ability. The bottom line, however, is that if a member can’t work due to their childcare responsibilities they should be allowed to remain on leave with pay.
The transition back to work will not be an easy one, and it is still too early to know exactly what “normal” will look like. It will be easier to implement social distancing requirements for front-line workers, even though we don’t anticipate that the borders will reopen for at least another month. There is still no clear indication of how social distancing will be accomplished for office workers. When Treasury Board refers to “returning to work”, therefore, we believe that in most instances they are referring to employees formerly on 6990 starting to work from home, not returning to a physical work location.
To date, we do not have any indication that the employer intends to cut 6990 leave for members whose vulnerability makes them unable to work. The Treasury Board email deals solely with 6990 leave and childcare.
Update (July 13, 2020)
As some of you are undoubtedly aware, the employer is taking steps towards bringing members off 6990 as things slowly begin to return to “normal”. Part of this initiative has included drafting a new document entitled “Attestation for High Risk for Severe Illness from Covid-19 Pandemic Form”.
This is a form our members are being asked to sign if they can’t resume their normal duties for Covid-related reasons. Unfortunately, it only covers two different circumstances: members who are high risk and members living under the same roof as people who are at high risk.
These are not the only reasons a member might need to remain on other leave with pay. For instance, securing childcare continues to be a challenge and the PSAC has filed a policy grievance on this issue. CIU is ready to respond with grievance language if the employer tries to force a member back to work who doesn’t have adequate child care, but we are continuing to ask that these grievances not be filed until after a decision is rendered on the policy grievance.
The employer’s new form needs to allow not only for child care issues, but for members who may not be able to work because they are caring for family members who don’t necessarily live with them. Changes also need to be made to other clauses, including one that asks members to accept that the employer may be assigning them work – even though this is supposed to be a leave form. Finally, we can’t support our members signing a form that basically acknowledges the employer can ask them for additional medical information at a later date – with no limits on what that may involve.
Brother Fortin sent a message to Julie Burke outlining our concerns and the fact that the form needs to be amended. He also also stated our expectation that members will remain on 6990 leave in the meantime and should not be made to exhaust their personal leave banks if they refuse to sign.
An update on the situation will be provided as soon as we have a response from the employer.
Update (July 23, 2020)
In response to the CIU’s concerns regarding the CBSA Attestation form, we were provided the following responses:
CIU concern (1): The form only contemplates two reasons for which employees may be prevented from returning to the workplace. Either they are at high risk or are living with someone who is at high risk of severe illness.
CBSA response (1): All leave with pay for other reasons will be reviewed on a case by case basis, this includes situations related to childcare or family care, as well as leave due to a work or technology limitation. Managers have been asked to engage in discussions with employees on leave with pay for other reasons related to the Pandemic about their individual circumstances and remain flexible. Employees will be asked to provide information regarding attempts made to secure childcare as they would in any duty to accommodate situation, the CBSA is not looking a creating a form at this time for the purpose of childcare/family care.
The attestation form is only for employees who are at high risk or living with someone who is at high risk (leave Code 6916 or 6924).
CIU concern (2): Part III of the form asks employees to acknowledge that they may be assigned work when they are making a request for leave.
CBSA response (2): The statement in PART III uses the word “may”, as the employer will make an effort to provide employees with work if and where possible, including any training and learning opportunities that employees who are working may have access to.
CIU concern (3): The form specifically asks employees not to disclose a medical diagnosis. Part III, however, anticipates that additional information may be required in order to approve the request for leave.
CBSA response (3): These situations will be treated the same as any request for accommodation, should managers require more information they may seek a medical note from the treating physician. To be clear, we are not looking for any medical diagnosis. Rather, we are looking for any limitations and restrictions that the employee may have or we want to confirm that despite all the measures put in place in the workplace, these are insufficient and the employee remains unable to report to the workplace.
CIU concern (4): We have heard that our members are being asked to take their own leave pending approval of this new leave request.
CBSA response (4): Should there be specific examples of cases that you wish to provide us, we will look into them. Each situation is unique and while the guidance and application should be consistent, we need be mindful of the individual circumstances.
Should you wish to discuss any issues related to this leave or have specific questions related to concern (4), please contact your Branch President.
