Ontario workers get 3 new leaves

On Oct. 29, legislation will come into effect allowing employees to take time off work to provide care for a family member with a serious medical condition, to care for a critically ill child or if their child disappears or dies because of a probable crime.

Ontario is one of a number of jurisdictions to legislate similar leaves. In Quebec, employees with at least three months of service are allowed to take up to 12 weeks off in a 12-month period to stay with a specified family member who suffers a serious illness or accident. For a child under 18 years old with a serious, possibly life-threatening illness, the employee may extend the leave to up to 104 weeks.

Saskatchewan also allows employees to take up to 12 weeks off work without pay in a 52-week period if a family member has a serious illness or injury.

Since 2013, when the federal government implemented changes to Employment
Insurance to allow parents to claim benefits for time off work if their child is critically ill or has disappeared or died as a result of a probable crime, many jurisdictions have added these leaves.

There are currently provisions for these child-related leaves in Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Saskatchewan and Yukon. The leaves are also allowed under the Canada Labour Code, which covers employers and employees under the federal government’s jurisdiction. Quebec previously changed its legislation to allow for similar leaves.

"It’s a new reality across the country," says Daniel Pugen, a partner in the Labour and Employment Group at law firm McCarthy Tétrault in Toronto.

"In the last 10 years, especially, there’s a growing recognition of issues of work-life balance, issues of an aging population, issues where both spouses are working, so time off is much more critical," he says.

"The Employment Standards Act (in Ontario) used to have very few leaves... Over the last 10 years, eight or so new leaves have been added," Pugen says.

Pugen says it is essential payroll and human resources professionals stay up to date with new legislation on leaves to help their employer avoid problems.

"Policies need to be updated to reflect that these leaves have the force of law... You could get into some hot water if you are unaware and you make a decision about not approving a leave."

Here is a brief overview of each of the new leaves:

This leave allows employees to take up to eight weeks off work, without pay, each calendar year to care for family members with a serious medical condition. The act does not define what constitutes a serious medical condition other than to state it can be a "chronic or episodic" condition.

"A serious medical condition could run the full gamut — physical, mental, psychological. Anything from a bad back to an anxiety disorder," Pugen says.

The leave is separate from the province’s existing Family Medical Leave, which allows employees to take up to eight weeks off work without pay if they need to care for a family member who is gravely ill and at risk of dying within 26 weeks.

To take the leave, employees need a certificate issued by a qualified health practitioner verifying a family member has a serious medical condition.

Employees will have to give their employer written notice, but given the nature of the leave, there is no requirement to provide the notice within a specified timeframe. Employees will not have to provide the notice before they take the leave. Employers may require employees give them a copy of the certificate.

Employees will be allowed to take a leave for each family member covered, meaning employees could be off more than once in a year, Pugen says.

It is important for employers to understand an employee’s entitlement to one of the new leaves is in addition to entitlements the employee may have to Family Medical Leave, Personal Emergency Leave or to one of the other new leaves, he adds.

There is no minimum employment period required for employees to qualify for the leave and no minimum number of employees required for it to apply to an employer.

Employers may not refuse an employee the leave (or any of the new leaves) for any reason, including undue hardship for the employer. While Pugen says most employers likely would not refuse an employee request for the time off for one of the new leaves, he notes covering for an absent employee can be difficult for small businesses.

Like other jurisdictions that have implemented a leave for parents of critically ill children, the maximum period of leave in Ontario is 37 weeks. The term "child" covers only children who are under 18 years old and includes a stepchild, a foster child or a child for whom the employee is the legal guardian.

To be eligible, employees must be employed for at least six consecutive months. This is similar to requirements under the Canada Labour Code and in Yukon. Other jurisdictions have shorter eligibility periods, from 30 days to three months, with New Brunswick not requiring any minimum period of employment to qualify.

Employees will also need a certificate issued by a qualified health practitioner verifying that the child is critically ill and needs the care or support of one or more parents. The certificate must also set out the period in which the child needs the care.

Employees who want to take the leave will have to give written notice of their intention and provide a written plan setting out the weeks they will be away. Employees will be allowed to begin their leave before giving the employer notice as long as they provide it as soon as possible. Employers may require a copy of the certificate.

Given the nature of the leave, the act allows employees to change the weeks they are off, as long as the change meets the requirements of the act, the employee gets the employer’s written permission and gives a reasonable amount of notice.

If an employee’s child, stepchild or foster child disappears because of a probable crime, the act will allow the employee to take up to 52 weeks off work. If the child dies because of a probable crime, the period of leave will be 104 weeks. A "child" refers only to those under 18 years old. The amount of leave is similar to that provided in most other jurisdictions, except New Brunswick, which provides for up to 37 weeks off in both situations.

Like Critically Ill Child Care Leave, employees must be employed by their employer for at least six months. Employees are not eligible if they are charged with the crime or, if it is probable, given the circumstances, the child was a party to the crime.

The notice provisions are similar to those for the leave for a critically ill child. The act also allows employees to change the weeks they plan to be off, as long as the change meets the requirements of the act, the employee gets the employer’s written permission and gives the employer four weeks’ written notice before the change is to happen.

As with other unpaid leaves in Ontario, employers will be required to continue to make their contributions to the employee’s pension, life insurance, accidental death, extended health and dental plans while the employee is taking any of these leaves. An exception applies if the employee gives the employer written notice that he or she does not want to continue to make contributions to the plans.

The time an employee is on leave is included when calculating an employee’s length of service, length of employment and seniority; however, is not included when determining if the employee has completed a probationary period.

When a leave ends, the employer must reinstate the employee in the position most recently held or to a comparable position if it does not exist, unless the individual’s employment is terminated solely for reasons unrelated to the leave.

The employee’s wages must be at least the same as they were before the leave began. If the wages for the job increased or would have if the employee had not taken the leave, the employer must pay the higher wage.

Pugen says payroll and human resources professionals should review their policies and collective agreements to make sure they comply with the legislated leave requirements.

"If the rules are clear and there’s a form and there’s a process, then in most cases the employee is going to co-operate and they are not going to go to the Ministry of Labour," he says.

As with other leaves, employers may not dismiss, lay off, discipline or suspend employees because they applied for or took a leave.

To avoid problems, Pugen advises that employers make sure managers across the organization are aware of all the legislated leaves since they are the ones employees will go to with leave requests.