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Job-protected leave requires co-operation, too

Like accommodation of human rights-protected grounds, employee leaves require effort on both sides
The Ontario Labour Relations Board recently looked at a case involving a Dairy Queen employee requesting family caregiver leave. Shutterstock/kevinbrine

By Jeffrey R. Smith

In a perfect world, employers would have perfect employees with perfect attendance. But the reality is, sometimes life gets in the away and employees can’t always go to work. Illness, bereavement, appointments, family emergencies – things come up that require employees’ attention and they need to be away from work. Allowing employees’ leave from work is important for a good work-life balance for employees and undoubtedly can help keep employees happy and productive – at least for those who don’t abuse it.

There are many types of unpaid, job-protected leaved available for employees, and Canadian jurisdictions are adding more to employment standards legislation. Employers are legally required to accommodate employees who need this leave, but employees have their own requirements to which they must live up. And if an employee doesn’t meet her own obligations, the employer may not have to grant the leave. Like all accommodation, it’s a two-way process.

Look at a recent case where an Ontario Dairy Queen outlet had an employee whose mother was diagnosed with cancer. The employee took a few days off occasionally to take care of her mother and since Dairy Queen was a mostly seasonal business, she had time off over the winter – though she developed a habit of taking a longer winter leave than she was supposed to.

In the summer of 2016, the worker requested a family caregiver leave for four weeks over the month of August. Workers in Ontario are legally entitled to unpaid leave to care for a parent, step-parent, or foster parent of themselves or their spouse.

However, the period for which the employee requested the leave was Dairy Queen’s busiest time of the year. Losing an employee for such a long time during the month of August would create serious staffing problems for the store, so the owner asked if it would be possible for the employee to take two weeks instead for four – she was willing to deal with the staffing issues for two weeks.

The employee responded to this by quitting her job “based on your reaction to my situation.” A few weeks later, she asked to come back and the employer granted this wish. However, a few weeks later the employer fired her after misconduct she had previously been warned about. The employee filed a complaint claiming the dismissal was a reprisal for requesting the family caregiver leave that wasn’t granted.

On the issue of the caregiver leave, the Ontario Labour Relations Board found the employer didn’t deny the employee the leave and therefore didn’t discriminate against her. The employer was put in a difficult situation by the employee’s request but didn’t deny her the leave, it simply asked about the possibility of a compromise of two weeks instead of four. It was the employee that walked away before the employer made a final decision on the request, said the board.

In addition, the employee didn’t live up to her obligation under employment standards legislation. The same provision in the Ontario Employment Standards Act that provides for family caregiver leave also requires an employee requesting the leave to provide a medical certificate indicating the family member who requires care. The employee didn’t provide any medical information, so the employer’s duty to allow the leave didn’t kick in, said the board.

It’s been said in this space that accommodation of employees in their employment under grounds protected by human rights legislation requires efforts by both sides of the equation – both the employer and the employee – and the accommodation doesn’t have to be exactly what either side wants, just reasonable for both. The same applies when it comes to job-protected leave. It’s not a perfect world, and accommodation isn’t perfect 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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