In the fall of 2014, the Employment Standards Amendment Act (Leaves to Help Families), 2013, also known as Bill 21, significantly expanded the statutory leaves available to employees. Bill 21 created three new unpaid leaves of absence: (i) family caregiver leave, (ii) critically ill child care leave and (iii) crime-related death and child disappearance leave.
These three new leaves are in addition to the family medical leave and personal emergency leave which were introduced in September 2001 by way of the Employment Standards Act, 2000 (the “ESA”).
Employers should be aware of their relatively new obligations which are described below.
Overview of the Three New Leaves
i. Section 49.3: Family Caregiver Leave
Immediately upon starting employment, employees that choose to provide care and support to a family member with a serious medical condition are entitled to up to eight weeks of unpaid leave. A “family member” is defined very broadly and includes all members of a nuclear family, step-relations and any “relative of the employee who is dependent on the employee for care or assistance.”
The ESA does not provide a substantive definition of “serious medical condition,” but notes that this term includes “chronic” and “episodic” conditions.
ii. Section 49.4: Critically Ill Child Care Leave
Employees that have been employed for at least six consecutive months are entitled to up to 37 weeks of unpaid leave to provide care or support to a critically ill child. A “child” is likewise broadly defined and includes “child, step-child, foster child or child who is under legal guardianship and who is under 18 years of age.”
iii. Section 49.5: Crime-Related Child Death and Disappearance Leave
Employees that have been employed for at least six consecutive months and are parents to a child who disappeared as a result of a crime are entitled to up to 52 weeks of unpaid leave and where it is probable that the employee’s child died as a result of a crime, the employee will be entitled to 104 weeks of unpaid leave.
In circumstances of all three of the above-noted leaves, employees are required to advise their employer in writing of the need for the leave. However, where an employee is unable to provide advance notice, an employee would only be required to provide notice “as soon as possible.”
Leaves of absence can cause significant challenges in managing the workplace. When an employee takes an unpaid leave of absence, an employer is required to arrange for coverage, rearrange service deadlines and, depending on the length of the leave, even recruit and hire a replacement.
In managing leaves of absence generally and particularly given the legislative changes, employers should consider the following:
- Employers should reexamine policies providing for automatic termination where an employee is absent from employment without notice;
- Employers may be able to count paid leaves which they provide to employees against an employees’ use of their statutory leaves;
- Employers can request a medical certificate in the circumstances of a family caregiver leave and critically ill child care leave or reasonable evidence of entitlement in circumstances of a crime-related child death or disappearance leave; and
- Employers should establish a protocol to ensure that managers understand whether an employee’s absence falls within the broad scope of the statutory leaves, even where an employee does not specifically indicate that their absence relates to a statutory leave.