Employee with less than 2 months' service requesting leave
Question: Can an employer deny bereavement or other leave to a short-term probationary employee of two months or less?
Answer: It will depend on the province and the specific employment standards legislation requirements. In some provinces an employer can deny bereavement or other similar leave to employees with two months or less of continuous service to the employer. Many provincial employment standards statutes provide that to be entitled to such leave, the employee must have been in the employer’s service for a minimum amount of time. Even where an employee is not eligible for protected bereavement or other similar types of leave, the employer will also want to consider whether the request for leave raises human rights considerations.
In Alberta, employees are only eligible for bereavement leave if they have been employed for at least 90 days with the same employer. Other forms of leave that are also subject to this 90-day qualification period include: compassionate care leave, critical illness leave, and personal and family responsibility leave. In Saskatchewan, the threshold is calculated in terms of weeks. Employees in Saskatchewan must have been employed for 13 weeks in order to be entitled to bereavement leave. The qualification period is also 13 weeks in order to access critically ill child care leave, compassionate care leave and crime-related child death or disappearance leave.
Employers in Manitoba will need to be especially careful to reference their employment standards legislation, since the legislation sets out different qualification periods for different types of leaves. Some types of leaves have a 30-day qualification period. Bereavement and other similar leaves, such as critical child illness, or death or disappearance of a child leave are subject to this 30-day qualification period. However, other leaves, such as compassionate care leave, are subject to a 90-day qualification period.
There are also some provinces where there is no qualification period of employment in order to be entitled to bereavement or other similar forms of leave. In British Columbia, an employee does not need to be employed for a specific amount of time to qualify for bereavement or other similar leave, such as family responsibility and compassionate care leave.
In Ontario, an employee is immediately entitled to personal emergency leave. An employee can access personal injury leave where there is a death, a personal illness, a medical emergency, or an urgent matter relating to specific relatives. Ontario employees with at least one week of employment with the same employer are entitled to two days of paid personal emergency leave. Employees with less than one week of service are entitled to unpaid leave; however, the first and second days of leave taken after the employee’s first week of employment must be paid to the employee.
Finally, there is no qualification period for an employee to be entitled to the protections afforded by human rights legislation. An employer will therefore want to consider if there are any human rights considerations that apply. If the reason for the request for leave relates to a prohibited ground of discrimination (such as family status), there may be a duty to accommodate.
