The Ontario Employment Standards Amendments Act (Leaves to Help Families) came into force on October 29, 2014, creating three new unpaid family-related leaves for employees: (1) Family Caregiver Leave; (2) Critically Ill Child Care Leave; and (3) Crime-Related Child Death or Disappearance Leave. This post will highlight the salient features of these new provisions affecting Ontario employers.
Entitlement to any one of these leaves is in addition to entitlement to the others, as well as family medical leave under section 49.1 and personal emergency leave under section 50. For all three new leaves, the employee must provide prior written notice to the employer, where possible. The employer may also demand evidence of an employee’s entitlement to leave, such as a police report, medical certificate, or death certificate. There are some additional stipulations for the Critically Ill Child Care Leave and the Crime-Related Child Death or Disappearance Leave. Namely, an employee must have been employed with the employer for at least six consecutive months, and his or her written notice must be accompanied by a plan indicating when the employee intends to take the leave. These plans can be amended with advance notice or permission from the employer.
Section 49.3: Family Caregiver Leave
An employee is entitled to take family caregiver leave for up to eight weeks to provide care or support to a family member diagnosed with a serious medical condition. Qualifying family members are defined broadly, including all members of a nuclear family, grandparents and grandchildren, in-laws, step-relations, and dependent relatives.
Section 49.4: Critically Ill Child Care Leave
An employee is entitled to unpaid leave to care for or support a “critically ill child” if a doctor, nurse, or psychologist’s medical certificate states that the child is “critically ill” and specifies the duration of care required. A “critically ill child” is defined as a biological, step-, or foster child under 18 years of age “whose baseline state of health has significantly changed and whose life is at risk as a result of an illness or injury” (subsection (1)).
An employee is entitled to leave of however many weeks specified in the certificate, for a period of up to 37 weeks, to be taken within a 52-week period. If the certificate specifies a period greater than 52 weeks, the leave nevertheless ends at the end of the 52-week period that began when the child fell ill. If more than one child is critically ill due to the same event, the 37 weeks run concurrently. Finally, if a child dies from the critical illness, the leave ends at the end of the week in which the child dies.
Section 49.5: Crime-Related Child Death or Disappearance Leave
An employee is entitled to this unpaid leave if a child dies or disappears and it is probable that the child died or disappeared as a result of crime. The duration of the leave is up to 104 weeks in the event of death or 52 weeks in the event of a disappearance. An extension of leave is available where a missing child is later found dead.
If the employee is charged with the crime causing the child’s death or disappearance, or it is probable that the child was party to the crime, the employee is disqualified from leave. Furthermore, if it later becomes apparent that the death or disappearance did not result from crime, entitlement to leave ends on the day these new circumstances are discovered.
In contrast to the Critically Ill Child Care Leave, which permits leave to be taken at any point in a 52-week period, the Crime-Related Child Death or Disappearance Leave must be taken in a single period, commencing within a week of the death or disappearance.
Implications for Employers
These statutory protections remove discretion with respect to certain leaves that fall within their scope. Ontario employers will need to consider whether leaves requested by employees relate to these new provisions and are therefore statutorily protected. Where they are, there will be no discretion on employers to deny such leaves. Moreover, an employee’s position will be protected for the extent of the leave, with no reprisals being permitted for taking the leave.
Such new statutory leaves coincide with increasing case law regarding the duty to accommodate for family status and childcare responsibilities. These legislative changes and case law developments provide a good opportunity to review corporate policies with respect to family care related leaves in the workplace.