Navigating Ontario’s new leaves of absence

Across Canada, legislative changes are increasing the opportunities for employees to take unpaid leaves while ensuring their jobs will be waiting for them when they come back. Ontario in particular has been making it easier for workers to take time off, and the province will soon add several more reasons workers can take a leave from the workplace with the ability to return to work for the same employer.

Here’s a look at the new leaves that have been added to Ontario’s list and strategies employers can use to manage the increasingly complex landscape of job-protected leaves of absence.

Most employers familiar with Ontario’s Employment Standards Act, 2000 (ESA) understand their obligation to provide job-protected leaves of absence to employees under certain circumstances. The legislative amendments to the ESA that are set to take effect on Oct. 29, 2014, will require employers to become familiar with three new job-protected leaves — an increase that can add additional organizational and administrative complexity.

Currently, the ESA provides the following seven unpaid job-protected leaves: pregnancy, parental, family medical, organ donor, personal emergency, emergency and declared emergencies, and reservist leave. With the intention of assisting Ontario families, the following unpaid job-protected leaves will be added to the ESA: family caregiver leave, critically ill childcare leave and crime-related child death or disappearance leave.

The new leaves will involve various eligibility requirements.

Family caregiver leave

• Employees, regardless of length of service, are entitled to up to eight weeks of unpaid leave per calendar year to
provide care and support to a family member with a serious medical condition diagnosed by a qualified health practitioner.

• Qualifying family members include: spouse, child, parent, grandchild, sibling, or other relative who is dependent on the employee for care or assistance.

• The eight-week entitlement can be applied to care for each qualifying family member.

• Employees are not required to take this leave in complete weeks.

• This leave is to be distinguished from the family medical leave, where an employee may take unpaid time off to care for a family member who has a serious medical condition likely to lead to death.

Critically ill childcare leave

• Employees employed for at least six consecutive months are entitled to take an unpaid leave to provide care or support for a critically ill child under the age of 18, if a qualified health practitioner issues a certificate stating that the child requires the care of a parent and sets out the required period of care.

• A critically ill child is defined as “a child whose baseline state of health has significantly changed and whose life is at risk as a result of an illness or injury.”

• Employees are not required to take this leave in complete weeks.

• While an employee is entitled to up to 37 weeks for this leave, the employee is only allowed to take the leave for the period specified in the certificate if the period is less than 37 weeks.

Crime-related child death and disappearance leave

• Employees with at least six consecutive months of service will be entitled to up to 104 weeks of unpaid leave if their child — under 18 years of age — dies, and the likely cause of death is related to the commission of a crime.

• Employees with at least six consecutive months of service are also entitled to 52 weeks of unpaid leave if their child — under 18 years of age — goes missing, and the likely cause of the disappearance is related to the commission of a crime.

• Generally, employees must take this leave in complete weeks.

• There is no entitlement to this leave if the employee is charged with the crime or the child is a probable party to the crime.

Similar to the existing job-protected leaves under the ESA, employees on these new leaves have certain rights. Specifically, employers must count the time on leave as time served during employment; employers are required to continue making contributions to existing benefit plans including pension, life insurance and extended health and dental plans; and employees have a right to be reinstated to their pre-leave position, if it still exists — or a comparable position — at the same rate of pay before the leave or the changed rate, if higher.

While the intention to help families by implementing these new leaves is virtuous, from an employer’s perspective, any leave of absence can become a minefield when managing attendance and absenteeism. With the total number of job-protected leaves under the ESA soon to be 10, all with varying entitlements and eligibility criteria, employers need to carefully navigate these leaves in order to avoid exposures, including to reprisal and human rights complaints.

Tips for managing leaves of absence

There are a range of strategies organizations can employ when navigating job-protected leaves of absence. To minimize the complexity and legal liability, here are some tips and strategies:

Manage with care. Employers need to be careful of reprisal complaints when considering any action against an employee that is related to the request or use of a job-protected leave —namely, disciplining or terminating an employee for taking a job-protected leave. If employers have an attendance management program, any attendance-related sanctions under these programs should not be applied to absences related to job-protected leaves, as this could be considered a reprisal for the employee taking the leave.

Design and implement effective attendance policies. Employers need to explicitly state their expectations in attendance policies by outlining procedures in the event an employee wishes to take a leave of absence. For example, in the case of the critically ill child and crime-related child death or disappearance leave, employers can require the employee to provide written notice that a leave will be taken, as well as indicate the duration of that absence. That said, employees are permitted to take any of the new leaves without advanced written notice, if written notice is not possible/practicable, but employers can — and should — require notice to confirm that a leave is being taken within a reasonable time of the employee commencing the leave.

Track all absences. Employers should keep track of the number of days, as well as the reasons, for a leave of absence. According to the Toronto Conference Board, only 46 per cent of Canadian organizations tracked workplace absences in 2012 — meaning the majority of Canadian companies had no idea how many days their employees were off work. Tracking an employee’s leaves of absence will ensure an employer is not providing duplicate or excess leave entitlements. More importantly, tracking will prevent situations where an employer inadvertently imposes attendance-related sanctions on an employee for taking a job-protected leave, which could attract reprisal or human rights complaints.

If necessary, gather information and investigate. In most cases, an employer will have no reason to question the legitimacy of a leave. However, if an employer has reason to be suspicious, it may request that an employee demonstrate entitlement to the leave. The employee must comply within a reasonable time, the length of which will depend on the circumstances. In the case of the critically ill childcare or family caregiver leave, for example, an employer is entitled to a medical certificate justifying the leave.

Don’t forget to accommodate. In addition to complying with the new leaves of absence provisions under the ESA, employers also have the duty to accommodate family status under the Ontario Human Rights Code. While granting one of the new leaves is considered accommodation, employers should be aware that the duty to accommodate does not necessarily end when an employee returns from a leave. The employee may still require additional workplace accommodation, such as a flexible work schedule, in order to meet his caregiver obligations. Failing to accommodate could expose an organization to a human rights complaint.