October 6, 2014
On April 29, 2014, Bill 21, the Employment Standards Amendment Act (Leaves to Help Families), 2014 (the “Act”), received Royal Assent and is set to come into force on October 29, 2014. The amendments provide employees with three new statutory protected leaves of absence, which are substantial changes to the Ontario Employment Standards Act, 2000 (the “ESA”).
The recent amendments add three new job-protected leaves of absence:
- Family Caregiver Leave;
- Critically Ill Childcare Leave; and
- Crime Related Child Death or Disappearance Leave.
FAMILY CAREGIVER LEAVE
The existing Family Medical Leave allows an absence in the event that a qualified health practitioner issues a certificate indicating that death is likely within the next 26 weeks. The new Family Caregiver Leave allows an employee to take up to 8 weeks of unpaid leave to provide care or support to those who are effectively “family”. The leave is only allowed if a health practitioner issues a certificate confirming the family member has a “serious medical condition.”
What do these new terms mean under the Act?
- A “qualified health practitioner” is not limited to just a physician, but also a registered nurse or a psychologist under the laws of jurisdiction in which care or treatment is provided to an individual as well as a member of a prescribed class of health practitioners.
- Who are considered “family” is broadly defined under the Act. A “serious medical condition” is not defined specifically, albeit may include a condition that is chronic or episodic.
- A “certificate” is not defined under the act. No form of certificate is prescribed.
- A “week” is considered seven consecutive days at a time, which begin on a Sunday and end on a Saturday.
CRITICALLY ILL CHILD CARE LEAVE
Employees with at least six months’ service may take up to 37 unpaid weeks to support a “critically ill child.” Similar to the Family Caregiver Leave, the leave is only allowed if a health practitioner issues a certificate confirming that the child is critically ill. In addition though, the certificate should state: 1) that the child is critically ill; 2) that the child requires the care or support of one or more parents and 3) the period of time in which the child requires the care or support.
“Critically ill child” is defined as a child, step-child, foster child or child who is under legal guardianship and is under 18 years of age whose life is at risk due to illness or injury.
CRIME-RELATED CHILD DEATH OR DISAPPEARANCE LEAVE
Employees with at least six months’ service may take up to 104 unpaid weeks of leave if it is probable that the employee’s child’s death was as a result of a crime.
The employee would be entitled to up to 52 weeks’ leave if it is probably that the child’s disappearance was due to a crime.
“Crime” means an offence under the Criminal Code of Canada
Employees must notify their employer in writing. It is advisable to notify the employer in writing prior to taking a leave, but if the employee must begin the leave before advising the employer, the employee shall advise the employer of the leave in writing as soon as possible after beginning it.
Employees are generally permitted to take the leave off in non-consecutive weeks, however, each leave of absence is treated differently, and the Act so specifies.
An individual’s entitlement to leave under Family Caregiver Leave is in addition to any entitlement to leave under Family Medical Leave, Critically Ill Child Care Leave, Crime-related Child Death or Disappearance Leave and Personal Emergency Leave.
Since the legislation is new, there is no law specifically interpreting it. The Ministry of Labour has not issued policy guidelines on the new leaves. In comparing the old leaves with the new leaves, it is much more employee-friendly, so courts or arbitrators are likely to favour employees. Employers should take time to review and update their employee handbooks, contracts and collective agreements to specifically include the new leaves of absence.
While all employees in Thunder Bay are limited to unpaid leaves of absence under the new legislation, they are still statutorily protected, which means employees have the right to return to work at the conclusion of the leave.