Three new unpaid job-protected ESA leaves of absence in effect October 29, 2014

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On October 29, 2014, the provisions of Bill 21, the Employment Standards Amendment Act (Leaves to Help Families), come into force. The Bill creates three new classes of unpaid job-protected leave under the Ontario Employment Standards Act:

  • Family Caregiver Leave;
  • Critically Ill Child Care Leave; and
  • Crime-Related Child Death and Disappearance Leave

Readers of Focus will recall that Bill 21 was introduced on March 5, 2013 (see “Ontario proposes three new categories of unpaid job-protected leave – Family Caregiver Leave, Critically Ill Child Care Leave, and Crime-Related Child Death and Disappearance Leave”). Since its introduction, Bill 21 has undergone minor amendments, some of which will be discussed below.

Family Caregiver Leave and Critically Ill Child Care Leave are in addition to the existing Family Medical Leave which is available when an employee’s family member has a serious medical condition with a significant risk of death occurring within 26 weeks. In such circumstances an employee is entitled to up to eight weeks of unpaid job-protected leave.

FAMILY CAREGIVER LEAVE

Up to eight weeks per calendar year of Family Caregiver Leave will be available to employees to provide care or support to a specified family member where a qualified health practitioner has issued a certificate stating that the family member has a serious medical condition. Serious medical condition is not defined, but the Bill was amended at Standing Committee to provide that it may include a condition that is chronic or episodic. There is no requirement that employees be employed for a certain period of time to be entitled to the leave. The eight weeks may be used for each of the following specified family members:

  • The employee’s spouse
  • A parent, step-parent or foster parent of the employee or the employee’s spouse
  • A child, step-child or foster child of the employee or the employee’s spouse
  • A grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse
  • The spouse of a child of the employee
  • The employee’s brother or sister
  • A relative of the employee who is dependent on the employee for care or assistance

One of the significant changes made at Standing Committee was the removal of the requirement that the leave be taken in periods of full weeks. The Ministry of Labour’s Fact Sheet provides that employees may take leave for periods less than a full week (for example, single days), but if they do, they are considered to have used one week of their eight-week entitlement. In order to take the leave, employees must provide their employers with written notice and if requested by the employer, the certificate from the qualified health practitioner. If employees have to begin the leave before notifying their employers, employees must inform the employer in writing as soon as possible after starting the leave.

CRITICALLY ILL CHILD CARE LEAVE

Critically Ill Child Care Leave is available to employees with at least six consecutive months of employment with the same employer. This leave of absence may be up to 37 weeks in duration and will allow employees to provide care or support to a critically ill child. Standing Committee amendments to Bill 21 provided new definitions for the terms “child” and “critically ill child”:

  • “child” means a child, step-child, foster child or child who is under legal guardianship, and who is under 18 years of age
  • “critically ill child” means a child whose baseline state of health has significantly changed and whose life is at risk as a result of an illness or injury

A qualified health practitioner must issue a certificate stating that the critically ill child requires the care or support of the parent and the period during which the child requires such care or support. Like Family Caregiver Leave, the leave can be taken for periods less than a full week. Employees who intend to take Critically Ill Child Care Leave must notify their employers in writing and provide a written plan that indicates the weeks in which the leave will be taken. Employees may begin the leave before advising their employers, but employees must advise their employers in writing as soon as possible after beginning the leave. Employees can change the time of the leave indicated in their original plan provided certain conditions are met under the Act.

CRIME-RELATED CHILD DEATH OR DISAPPEARANCE LEAVE

Like Critically Ill Child Care Leave, the leave of absence for a crime-related child death or disappearance is available to employees that have been employed by their employer for at least six consecutive months. This leave of absence is available if a child of an employee dies or disappears as a result of a crime. This unpaid leave of absence may be up to 104 weeks in the case of a death of a child, and up to 52 weeks in the case of a disappearance of a child. Leave is not available where the employee is charged with the crime, or if it is probable that the child was a party to the crime. “Child” is defined to include a child, step-child or foster child who is under 18 years of age. “Crime” means an offence under the Criminal Code. Subject to a specific exception, employees must take the leave in a single period. In order to take this leave, employees must advise their employers in writing. Employees are also required to provide their employers with a written plan indicating when the leave will be taken, and where the employer requests it, provide reasonable evidence to support entitlement to the leave. If required, employees may begin the leave before advising their employers, but they must advise their employers in writing and provide the employer with a written plan as soon as possible after beginning the leave.

In our view

As noted, the Bill 21 amendments come into force on October 29, 2014, bringing the total of unpaid job-protected ESA leaves to ten. Employees may be entitled to more than one leave for the same event. Employer should review and become familiar with the rules surrounding these new categories of unpaid job-protected leaves of absence.

For further information, please contact Sophie Gagnier at (613) 940-2756.