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The laws of leaves

Employers may be exposing themselves to liability by not be meeting legal obligations when it comes to leaves of absence – or they may be unintentionally giving away too much

By Stuart Rudner

Leaves of absence, once a fairly straight-forward concept, are now substantially more complicated than many employers appreciate. In Ontario and other jurisdictions there are several “new” forms of leave available in different circumstances.

When employers are not aware of all of them, and not aware of their obligations in the event one of their employees take such a leave, they expose themselves to unnecessary liability.

In Ontario, the Employment Standards Act, provides for the following forms of leave:

Pregnancy leave

As the name suggests, this type of leave is available to employees that are pregnant. Notably, the employee is only required to have been hired at least 13 weeks before the date that the baby is expected to be born. They do not have to have actually worked during that 13 week period, and the leave can commence earlier if the baby is born early. Employees have the right to take up to 17 weeks of pregnancy leave.

Parental leave

This form of leave is available to birth parents, adoptive parents and a person that is in a relationship of “some permanence” with a parent of the child and who plans on treating the child as their own. This leave can last up to 35 weeks if the employee also took pregnancy leave, or 37 weeks otherwise. It must be taken within 52 weeks of the date the baby was born or first came into the care, custody and control of the parent in question. However, the leave does not have to be completed within 52 weeks.

If the employee does not specify a return date, then the employer is entitled to assume they will take their 35 or 37 week entitlement, and cannot require the employee return to work earlier. If the employee does not intend to return, they are required to provide at least four weeks’ notice of their resignation. When they return, the employee is entitled to be returned to the same job that they had before the leave began, or if the previous job truly no longer exists, they are entitled to be put into a comparable job.

I say “truly”, because the employer cannot simply rename the job or shift a few duties around in order to create a new position. Without digressing too far, it is important to note that even if the individual’s replacement is far superior, the employer is not entitled to simply keep the replacement and advise the employee on leave her job no longer exists.

Personal emergency leave

Organizations in Ontario with 50 or more employees are required to allow up to 10 days of unpaid leave for illness, injury or other emergency or urgent matters. While some employers offer a certain amount of paid sick leave, Personal Emergency Leave is, by default, unpaid.

Family medical leave

This form of leave is offered to employees with a family member that has a serious medical condition and a significant risk of death occurring within a period of 26 weeks. Employees will be entitled to leave of up to eight weeks in a 26-week period. Note that the eight weeks do not have to be taken consecutively.

Reservist leave

This form of leave is available to employees that are military reservists and are deployed to an international operation or an operation within Canada providing assistance with an emergency or its aftermath. They will be entitled to unpaid leave for whatever time is necessary. They are entitled to be returned to the same position they had, as long as it continues to exist. Unlike other types of leave, the employer is entitled to postpone the employee’s return for up to two weeks or one pay period.

Organ Donor Leave

Another "new" form of leave. Employees may take up to 13 weeks if they have donated any of

  • Kidney
  • Liver
  • Lung
  • Pancreas
  • Small bowel,

and have been employed for at least 13 weeks.

Another one?

Late in 2011, the Ontario government introduced Bill 30 which, if it becomes law, would allow for up to 8 weeks off work each year to care for specified relatives suffering from a serious medical condition.

Conclusion

Other jurisdictions will offer somewhat different leave entitlements, but the point is employers should familiarize themselves with their obligations and their rights. This can help them avoid breaching employment standards legislation by not offering leave that is required or by failing to treat an employee properly upon their return.

It can also help them to understand that there may be certain leaves that they offer employees, such as sick leave, which may not be required in the circumstances.

Stuart Rudner is a partner in the Labour & Employment Law Group of Miller Thomson LLP, a national law firm. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at (416) 595-8672, (905) 415-6767 or srudner@millerthomson.com. You can also follow him on Twitter @CanadianHRLaw and join his Canadian HR Law Group on LinkedIn.

Stuart Rudner

Stuart Rudner, Employment Lawyer and MediatorStuart Rudner is the founder of Rudner Law (RudnerLaw.ca), a firm specializing in employment law and alternative dispute resolution. He is a senior employment lawyer, mediator and arbitrator. He can be reached at stuart@rudnerlaw.ca, (416) 864-8500 or (905) 209-6999, and you can follow on Twitter @RudnerLaw.
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