Family medical leave now the law in Ontario

Province recalls legislature from summer break to pass legislation that protects workers' jobs
By
|hrreporter.com|Last Updated: 09/14/2006

Workers in Ontario who are caring for a gravely ill family member can now take up to eight weeks off work without worry about losing their job.

The provincial government, in a special session of the legislature that was recalled from the summer break, passed the legislation in less than 10 minutes. The legislation was initially blocked by the NDP before the legislature went into summer recess, allegedly in a dispute over funding for mailing privileges.

“The legislation that came in to force (June 29) provides important protection and peace of mind for workers who might otherwise be faced with the impossible choice of quitting their job to care for a gravely ill loved one,” said Labour Minister Chris Bentley. “Our people’s health is our most precious resource. We share a responsibility to protect it from harm and care for it in times of need.”

The Employment Standards Amendment Act (Family Medical Leave), 2004, which received Royal Assent on June 24, provides up to eight weeks of job-protected leave for employees who wish to take time off work to provide care or support for a gravely ill family member at significant risk of dying within 26 weeks. Anyone in Ontario covered by the Employment Standards Act, 2000, including part-time workers, is eligible to take this job-protected time off work.

“Providing family medical leave is good for Ontario families,” said Bentley. “Many workers have had to quit their jobs to care for a loved one, losing their main source of income and using most or all of their savings.”

According to the province, studies show that caregivers in these situations face incredible stress, often leading to a rise in absenteeism. The cost of this absenteeism is estimated at more than $1 billion a year in Canada, with indirect costs of an additional $1 to $2 billion. Employees who are able to take leave to care for gravely ill family members will tend to return to their workplaces better able to focus on their jobs and are likely to be more loyal to their employer.

“Years ago, as a society, we decided to support families in the happy times at the beginning of life with maternity and parental leave,” said Bentley. “This is a statement that we are prepared to support people at a difficult time of life.”

Qualifying for family medical leave: Facts from the Ontario government

What is Family Medical leave?

Family Medical leave is unpaid, job-protected leave of up to eight weeks in a 26-week period.

Family Medical leave may be taken to provide care and support to a specified family member for whom a qualified health practitioner has issued a certificate indicating that the family member has a serious medical condition and there is a significant risk of death occurring within a period of 26 weeks.

Although two or more employees may qualify for the leave, the eight weeks of leave must be shared between the employees.

In certain limited circumstances, an employee would be entitled to take subsequent leaves to care for the same family member.

Who can take family medical leave?

All employees, whether full-time or part-time, permanent or contract, who are covered by the Employment Standards Act 2000 (ESA) are entitled to family medical leave.

There is no requirement that an employee be employed for a particular length of time or that the employer employ a specified number of employees in order for the employee to qualify for family medical leave.

Are there Employment Insurance (EI) benefits available to an employee who takes family medical leave?

Under the Employment Insurance Act, six weeks of employment insurance benefits called “compassionate care benefits” may be paid to EI eligible employees who have to be away from work temporarily to provide care to a family member who has a serious medical condition with a significant risk of death within 26 weeks and who requires care and support from one or more family members.

The right to take time off work under the family medical leave provisions of the ESA is not the same as the right to the payment of compassionate care benefits under the federal Employment Insurance Act. The Ontario Ministry of Labour cannot assist an employee to obtain the compassionate care benefits.

For information about EI compassionate care benefits, call the nearest Human Resources Skills Development Canada (HRSDC) - Employment Insurance Telemessage General Inquiries. The telephone number is listed in the blue pages of the telephone book, under “Employment and Unemployment”. You can also visit HRSDC’s internet site.

For what reasons can an unpaid family medical leave be taken?

An employee can take family medical leave to provide care and support to a specified family member who has a serious medical condition with a significant risk of death occurring within a period of 26 weeks. This medical condition and risk of death must be confirmed in a certificate issued by a qualified health practitioner.

What does providing care and support mean?

Care and support includes: providing psychological or emotional support, arranging for care by a third-party provider or directly providing or participating in the care of the family member.

For which family members may a family medical leave be taken?

The specified family members for whom a family medical leave may be taken are:

•the employee’s spouse (including same-sex spouse);

•a parent, step-parent or foster parent of the employee; and

•a child, step-child or foster child of the employee or the employee’s spouse.

Is family medical leave the same as emergency leave?

No. Family medical leave is an unpaid leave of up to eight weeks that may be taken within a specified 26-week period to provide care and support to a specified family member for whom a qualified health practitioner issues a certificate stating that this family member has a serious illness with a significant risk of death occurring within a period of 26 weeks.

Emergency leave, on the other hand, is an unpaid leave of up to 10 days in each calendar year which can be taken because of personal illness, injury or medical emergency and the death, illness, injury, medical emergency or urgent matters relating to certain family members and dependent relatives. Further, only employees who work for employers that regularly employ at least 50 employees are entitled to emergency leave and the persons with respect to whom an emergency leave may be taken may differ from the family members specified for Family Medical leave

.

Are employees entitled to both family medical leave and emergency leave?

An employee may be entitled to both leaves. They are separate leaves and the right to each leave is independent of any right an employee may have to the other leave. An employee who qualifies for both leaves would have full entitlement to each leave.

Rights and responsibilities

How long is a family medical leave?

A family medical leave can last up to eight weeks within a specified 26-week period.

Does family medical leave have to be taken all at one time?

The eight weeks of a family medical leave do not have to be taken consecutively but an employee may only take a leave in periods of entire weeks.

“Week” is defined for Family Medical leave purposes as a period of seven consecutive days beginning on a Sunday and ending on a Saturday. Week is defined in this way to correspond with the beginning and end of the week set for EI entitlement purposes.

Example:
An employee begins a family medical leave on a Wednesday, May 21.

The first week of leave is defined as beginning on the preceding Sunday (May 18) and will end on Saturday, May 24

The Employee will have used one full week of the eight weeks of family medical leave as of Saturday, May 24.

Do I have to share a family medical leave with others?

The eight weeks of a family medical leave must be shared by all employees who take a family medical leave to provide care and support to a specific family member. For example, if one spouse took six weeks of family medical leave to care for his child, the other spouse would be able to take only two weeks of family medical leave.

Can an employee take more than one eight-week leave to provide care for the same family member?

If an employee has taken a leave to care for a family member who has not passed away within the 26-week period referred to in the medical certificate and a health practitioner issues a subsequent certificate stating the family member has a serious medical condition with a significant risk of death within 26 weeks, the employee would be entitled to an additional eight-week family medical leave.

(Note: whether or not this employee would be eligible for any or further EI benefits would be a matter to be determined by the federal Employment Insurance Commission (EIC).)

When can the family medical leave be taken?

If a qualified health practitioner issues a certificate stating that a specified family member has a serious medical condition and there is significant risk of death occurring within a period of 26 weeks, an employee may take the Family Medical leave within that 26-week period.

Where multiple certificates are obtained by employees wishing to take leave with respect to the same family member, the 26-week period within which the family medical leave must be taken is determined by the first certificate issued by a qualified heath practitioner.

When can a family medical leave begin?

The earliest an employee may start the leave is the first day of the week in which the 26-week period identified on the medical certificate begins. Since week is defined for the purposes of family medical leave as a period of seven consecutive days, beginning on a Sunday and ending on a Saturday, the 26-week period set out in the medical certificate should always start on a Sunday. But if a certificate provides the 26-week period begins on a day other than a Sunday, it will be deemed to have begun on the preceding Sunday. Likewise, regardless of what day of the week the employee begins the leave, the week of family medical leave would begin on the preceding Sunday.

Example:

On Wednesday, June 13, a medical practitioner issues a certificate stating that the individual (in this example, the employee’s spouse) has a serious medical condition with a significant risk of death within a period of 26 weeks. Because a week is defined as a period of 7 consecutive days beginning on Sunday and ending on Saturday under the Family Medical leave provisions, the 26-week period is considered to begin Sunday June 10. Assuming the employee wished to commence the leave on the day the certificate was issued, the first week of the leave would also begin on Sunday June 10.

When must a family medical leave end?

The latest day an employee could remain on leave would be (whichever is earlier):

•the last day of the week in which the family member dies; or

•the last day of the week in which the 26-week period expires; or

•the last day of the eight weeks of family medical leave.

Based on the definition of “week” for family medical leave, the leave would always end on a Saturday.

Does the employee need to have the medical certificate before he can take the leave?

No. An employee might commence the leave before obtaining the medical certificate, however, the right to the leave is dependent upon the issuance of the medical certificate and the leave must be completed within the 26-week period specified in that certificate. If the employee could not subsequently produce the certificate and/or if the leave were not completed within the 26-week period, the employee would not have had a right to the family medical leave under the act and would not be entitled to any of the protections afforded to employees on such a leave.

Can the employer ask for proof that an employee is eligible to take a family medical leave?

An employer is entitled to ask an employee for a copy of the certificate of the qualified health practitioner to provide proof that he or she is eligible for a family medical leave. The employee is required to provide that certificate as soon as possible after the employer requests. The certificate must state that the family member has a serious medical condition with a significant risk of death occurring within a specified 26-week period.

The employee is responsible for obtaining and paying the costs (if any) of obtaining the certificate. The Ministry of Labour cannot assist the employee in obtaining the certificate.

Who is a qualified health practitioner?

A qualified health practitioner is a person who is qualified to practise medicine under the laws of the jurisdiction in which care or treatment of the family member is being provided.

In Ontario, at this time, only medical doctors can issue a certificate.

What if I cannot obtain a certificate?

Eligibility for family medical leave is dependent upon the issuance of the medical certificate (a copy of which must be provided to the employer if requested.) If an employee cannot obtain a certificate from a qualified health practitioner, he is not entitled to the leave and will not have job protection if he does not report for work. The employer may voluntarily agree to provide him with time off work in such a case, but an employer is not required to so under the act.

How do employees tell their employers about their plans to take a family medical leave?

An employee must inform the employer in writing that he will be taking a family medical leave of absence.

What if there is no time for the employee to give notice?

If an employee has to begin a family medical leave before notifying the employer, he must inform the employer in writing as soon as possible after starting the leave.

What if the employee fails to give notice?

An employee who doesn’t give notice does not lose his right to a family medical leave.

Can an employer fire an employee for taking family medical leave?

No. An employer can’t fire or otherwise penalize an employee in any way for taking, planning on taking, being eligible or being in a position to become eligible to take a family medical leave.

What happens to an employee's pay, seniority and benefits?

•Employers do not have to pay wages when an employee is on family medical leave;

•Employees earn seniority and credit for length of service and length of employment while on family medical leave — just as if they had stayed at work;

•While an employee is on family medical leave, the employer must continue to pay its share of the premiums to certain benefit plans (such as pension plans, life insurance plans, accidental death plans, extended health insurance plans and dental plans) that were offered before the leave. For further details, see the ESA and its regulations.

What if the employer does not follow the ESA?

If an employee thinks the employer is not complying with the ESA , he can call or visit the nearest Ministry of Labour office to discuss a particular situation or to file a complaint. Complaints are investigated by an employment standards officer who can, if necessary, make orders against an employer — including an order to comply with the ESA .

Source: Government of Ontario

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