Employment law is filled with myths and misconceptions
By Stuart Rudner
Employment law is filled with myths and misconceptions. Previously, I have written about the myth that employees are entitled to one month of severance per year of service (not true), as well as misconceptions relating to overtime, holidays, vacation, and other issues.
With respect to leaves of absence, two areas of confusion that we are consistently asked about are bereavement leave and jury duty. Simply put, there seems to be a widespread assumption that everyone is entitled to bereavement leave when they lose a family member. The issue of jury duty arises less frequently, but also causes confusion, as there is an assumption on the part of most employees that employees are statutorily entitled to a paid leave of absence from work for jury duty.
Neither is true in all cases.
Obviously, it is compelling to say that anyone who loses a family member should be entitled to some time off of work. However, not every jurisdiction in Canada provides for bereavement leave. For example, Ontario does not, while British Columbia does. In Ontario, there may be other leaves of absence that can be used in such circumstances, such as Personal Emergency Leave, but there is no specific leave of absence designed solely to help those who have lost a loved one.
Where there is a leave available, it is important to note the details. While it is easy to say that the death of a family member should trigger the right to time off work, it is important to define exactly who will qualify, and how much time is available. For example, does it include grandparents or grandchildren, in-laws, common-law relationships, step relationships, etc.? It is also important to delineate how the rights and entitlements may differ; in other words, will someone be entitled to the same number of days off whether they lose a cousin or a spouse?
It is also important that employees never assume that they are entitled to a certain number of days off when somebody dies. Rather than relying upon what they have heard, they should always contact their employer in order to determine their rights, and also to advise the employer of their intentions.
Employers should be aware of the law, but also mindful of the fact that even if no statutory leave is available, it would be unwise to completely deny someone time off when they lose someone close to them. Realistically, if the individual was told that they could not have the time off, then took it anyway, it is hard to imagine many judges agreeing that significant discipline would be appropriate, in the absence of other exacerbating circumstances.
It is also important for the parties to discuss any need for time off, as every situation will be different. Sometimes, the employee will need to travel, and two or three days will not be sufficient.
With respect to jury duty, not every jurisdiction explicitly provides for a leave of absence, though employers will be hard-pressed to deny an individual time off if they are required to attend jury duty. There is no law that says that an individual serving jury duty is entitled to a paid leave of absence, despite another myth that seems to continue floating around. The bottom line is that an individual who is required to attend jury duty should be given the time off, but does not have to be paid unless the employer has a policy or contract which provides otherwise.
As a brief aside, there is also common myth that lawyers, their families, and anyone that works in a law firm is ineligible for jury duty. Unfortunately for some, that is not true, and simply being married to a lawyer, or working in a law firm, does not provide you with a “free pass”. Lawyers, however, are not eligible to serve on a jury.