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Employee personal leaves: A human right?

Certain types of leaves are mandated by employment standards, but some are also tied to human rights protections

By Jeffrey R. Smith

Need to take some time off work? If you’re a Canadian employee, odds are you have some official way to take the time, regardless of the reason. Under employment standards legislation in Canadian jurisdictions, employees are entitled to a minimum amount of vacation time – usually two weeks. Most employers expand on that, if not at first, then as employees gain service time. On top of that, there are several types of personal leave that employees can take where their job is guaranteed to be waiting for them upon their return.

Most types of legislated personal leave are unpaid only, but employers may decide to provide them as paid leave to a certain extent. The most common is probably sick leave, of which employers can grant employees a certain number of sick days in which the employees don’t lose any pay.

Other types of legislative leave in various jurisdictions include compassionate care leave, reservist leave, maternity leave and personal emergency leave. However, many employers — especially unionized ones as part of collective agreements — offer other types of paid or unpaid leave as a retention and engagement initiative and as a way to promote work-life balance.

Some types of legislated leave are designed to protect employees who may face personal crises or important issues that require them to leave work. Even if a leave isn’t legislated, if an employer is able to give an employee time off that the employee requires due to a protected right under human rights legislation, the leave could be considered part of the duty to accommodate. This leads to the question of whether certain types of leave should be considered a part of human rights protection.

In the last few years, family status has risen to prominence as a ground protected under human rights legislation. Employers are required to do whatever possible to accommodate employee needs related to family obligations. So should family-related leaves come under human rights protection? It might help eliminate any confusion over what employees are entitled to — if it’s related to family needs, there’s no question that it must be accommodated. And an employer’s failure to provide family-related personal leave — whether it be maternity, compassionate care, bereavement, or other — would be considered not necessarily an employment standards violation, but rather discrimination based on family status.

What about other leaves? There have been instances where employees who have taken too much sick leave have been disciplined or dismissed, then found to have been discriminated against because of a disability. Circumstances like that could arise if an employer requires doctor’s notes for a certain number of absences and the employee doesn’t provide them, but the employee had existing medical issues that the employer should have known about and realized those issues played a part in the absences. In such a situation, the sick leave could be considered accommodation of the employee’s disability.

There are many ways employees can take time off work, some of them related to reasons that may need to be accommodated. If they aren’t able to take the time off, it could be part of a discrimination argument. So whether personal leaves and human rights obligations are intertwined or not, employers might best tread carefully when addressing requests for either.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

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.
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4 Comments
  • common sense
    Friday, May 13, 2016 9:13:00 AM by Jeffrey R. Smith
    Generally, the bar for determining if an employer should have known about a disability is whether it was reasonable to reach that conclusion, ie. the employer can't turn a blind eye. For example, if the employee or co-workers make reference to things or the employee takes show signs of needing accommodation that would make a reasonable person think something was up.
  • Case-by-case
    Thursday, May 12, 2016 3:36:00 PM by Jeffrey R. Smith
    Any situation where someone is requesting accommodation has to be evaluated on its own merits. The main thing to remember is that yes, accommodation always carries an undue hardship obligation. Whether it's a request for leave or just flex time, it's the reason for the request that must be examined and whether the employer can do it without hurting its operations too much.
    Family status can be a bit tricky because certain family obligations wouldn't qualify as human rights (such as leaving early to see a kid's sporting event) but others would (such as childcare after school when there are no other options).