Changes have been made to the Newfoundland and Labrador Labour Standards Act to provide job security for parents and guardians in need of unpaid leave when a child is in crisis. This legislation dovetails with new federal Employment Insurance benefits announced by the federal government in August 2012.
Canada, Quebec, Ontario, Manitoba, Nova Scotia, and now Newfoundland and Labrador have this type of leave in their legislation. The Newfoundland and Labrador changes came into effect on December 10, 2013. The following are some Q&A’s for Newfoundland and Labrador employers
The new categories of unpaid leave from employment are for parents and guardians:
- Whose child has disappeared or died as a result of a crime; or
- Whose child is critically ill.
How does an employee qualify for these leaves and how much leave is available?
If an employee has been working with the employer for at least 30 days, they may take an unpaid leave of absence for:
- Up to 104 weeks if an employee’s child has died, or up to 52 weeks if the employee’s child has disappeared, and it is probable in the circumstances that the death or disappearance was the result of a crime. There is an exception to this rule if the employee is the person charged with the crime.
- Up to 37 weeks of unpaid leave to the employee parent or guardian of a child who is critically ill (as certified by a physician).
What are the employer’s obligations?
If your employee takes child-related leave, you cannot dismissing the employee for reasons relating to that leave. If the employee is terminated while he or she is on leave, the employer must demonstrate that it was unrelated to the unpaid leave. Employers must provide equivalent, or better, terms and conditions of employment upon the employee’s return to work.
Can the new child-related leave be combined with other types of leave?
The new entitlement to child-related leave is in addition to the pre-existing types of leave, all of which remain unchanged.
The Act previously provided for compassionate care leave, which provides for up to eight weeks of unpaid leave where a family member is terminally ill and has a significant risk of death in the short term. The child-related critical illness leave includes situations in which the child is not facing an imminent risk of death, and thus will have somewhat broader application. Employers may need to clarify which type of leave the employee is requesting.
The death of an employee’s child will likely also entitle that person to bereavement leave in accordance with the other relevant provisions of the Act.
What can an employer require from an employee asking for child-related leave?
You may ask for verification that the employee is entitled to leave. In the case of critical illness leave, the Act expressly contemplates that a physician will certify of the need for, and duration of, the leave.
While the available child-related leave is substantial – up to two years – its total duration is always limited to what is “reasonably necessary in the circumstances”. The employee is required to provide two weeks’ notice of his or her intent to take leave, unless there is a valid reason why that notice cannot be given.
What does “reasonably necessary in the circumstances” mean?
The new provisions require employers to make judgment calls as to what is reasonable, or where the employee is entitled to leave. You may not immediately know whether a crime has resulted in a child’s death. Trial and conviction for the related crime will usually not take place for some time after the death or disappearance, and trial may well conclude that no criminal activity took place. Employers will be called upon to make a reasonable decision based on the facts that are available to them.
That said, if your employee is the parent of a child who has died or disappeared, a criminal investigation results, and/or if charges are laid, he or she may well be entitled to take child-related leave. Each case must be evaluated on its own merits.
What should employers do now?
We anticipate, that employees will not need to avail themselves of this type of leave often. However, employers should update workplace policies to include these two new leaves of absence, and communicate the terms and conditions of the policy change to employees.