By Jeffrey R. Smith
With your leave
Increasing list of statutory leaves could create larger burden for employers trying to manage workforce
Jun 24, 2014
Employers have different ways of allowing employees paid time off to take care of things. Many have an allotment of “personal days,” which employees can use to take a day off for whatever reason if they need to but aren’t sick. Outside of those, employees are generally expected to dip into their vacation allotment to deal with personal, non-medical matters.
If employees need more time off and either can’t or don’t want to use vacation days, they have the option of taking unpaid leave. While unpaid leave might seem easier to get on the surface, employers could still be reluctant to grant it without legitimate reason — after all, an absent employee can have an effect on productivity, particularly if the employee has a position of responsibility. If the leave is lengthy, the employer might feel it wants someone else who will be around more to do the work — which is where statutory protected leave comes in.
All Canadian jurisdictions have enshrined in employment standards legislation certain types of unpaid leave which employees are permitted to take during which their jobs are protected. There is a maximum length to each type of leave, and the reasons must be proven. This list has been expanding, in particular in Ontario, where three new types statutory leave will be in effect this fall — family care leave, critically ill child care leave, and crime-related child death and disappearance leave.
The latter is a fairly new concept — employees who have a child who goes missing or dies as the result of a crime can get up to one year (for a missing child) or two years (for a deceased child) off work without losing their job. While often in those sad situations, people are off work for a long period of time, it has sometimes been at the discretion of the employer and occasionally the employee just can’t get back to work soon enough.
Other job-protected leaves in Canadian jurisdictions — some are in all jurisdictions, but others vary, as well as the length of the leave entitlement — include maternity leave, parental leave, bereavement leave, compassionate care leave, sick leave, personal emergency leave, and reservist leave for members of the Canadian Forces reserves who are called to active duty.
That’s quite a few different situations for which employers must grant time off for workers, and some of them have a fairly long maximum — though they aren’t required to pay the employees. But the list keeps growing, which might be of concern to employers.
There could also be a concern for workers that, in an era where fixed-term contracts are becoming more common in relation to permanent full-time positions, more job posting could be for contracts to replace workers on leave who will be coming back at some point.
Have we reached the limit for situations where employees should be granted leave, or are there other circumstances for which employees should be granted job-protected leave? What effects could an increasing number of statutory leave entitlements have on employers who are trying to manage their workforce and productivity, especially where employees each have their own particular duties?
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Jeffrey R. Smith
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.