Compassionate care leave provisions to be added to Employment Standards Act

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On April 13, 2004, Bill 56, the Employment Standards Amendment Act (Family Medical Leave), 2004 received first reading in the Ontario Legislative Assembly. The Bill is intended to provide job-protected leave in the circumstances contemplated by Bill C-28, the federal bill that amended the Employment Insurance Act to provide benefits to employees who are absent from work to care for critically ill relatives (see “Compassionate care leave added to EI Act, Canada Labour Code on our What’s New page). The Ontario bill’s provisions closely mirror those of the federal legislation. The entitlement to compassionate leave is additional to the existing emergency leave entitlement in the Employment Standards Act, 2000 (see “Emergency leave and agreements under the ESA 2000: new variables in the workplace mix” and “Parental leave, overtime rules among major changes in new Employment Standards Act ” on our Publications page).

Under Bill 56, an employee may take up to eight weeks of unpaid leave to care for ill family members. Family members include:

  • the employee’s spouse,
  • the employee’s parent, step-parent or foster parent,
  • a child, step-child or foster child of the employee or of the employee’s spouse, or
  • any other person designated as a family member in the regulations.

Spouses include common-law spouses as well as married spouses. Bill 56 also amends several provisions of the ESA to reflect the fact that, under Ontario law, same-sex couples are now able to marry.

To be eligible for compassionate leave, the employee must provide a certificate from a medical doctor – or, in circumstances prescribed in regulations, another health practitioner – stating that a family member has a serious medical condition with a significant risk of death within 26 weeks or a shorter period specified in regulations. The employee is also required to provide written notice of their intention to take the leave. If it is not possible for them to provide the notice before they begin the leave, they must give notice as soon as possible.

The leave may be taken for up to eight weeks only in periods of entire weeks. It may begin no earlier than the first week of the 26-week period and end no later than the last day of the week that the family member dies or the last day of the 26-week period, whichever is earlier. If an employee takes compassionate leave, and the family member does not die within the twenty-six week period, the employee may take another leave under the same rules that governed the first.

While more than one employee may take compassionate leave to care for the same individual, the total number of leaves taken by those employees cannot exceed eight weeks during the 26-week period. However, it is not clear how this provision will be enforced if the employees work for different employers.

Employees who take compassionate leave have the same rights during the leave and the same reinstatement rights upon return from the leave as employees on pregnancy, parental and emergency leave.

In Our View

We will keep readers advised of developments as Bill 56 is debated by the Legislature. The entire text of the legislation can be found at http://www.ontla.on.ca/documents/Bills/38_Parliament/
Session1/b056.pdf.

Government information on the Bill can be found at http://www.gov.on.ca/LAB/english/news/m_fml.html.

For further information, please contact Colleen Dunlop at (613) 940-2734.