Introduction

From pregnancy leave to reservist leave, Ontario employers are familiar with statutory leaves of absence and their associated protections. Employees have the right to certain periods away from work without losing their jobs. At the end of the leave, employers must return employees to the same role or, if the same role no longer exists, to a comparable one. Employers cannot reprise against employees who take or plan to take a statutory leave of absence. During the leave of absence, employers must generally continue to contribute to any benefits plans that employees are entitled to.

Included among the many changes to the Employment Standards Act, 2000 brought about by the Fair Workplaces, Better Jobs Act, 2017 (referred to as 'Bill 148') are changes to existing leaves of absence and the introduction of new leaves of absence for Ontario employees.

The leaves of absence now available are:

  • pregnancy leave;
  • parental leave;
  • family medical leave;
  • organ donor leave;
  • family caregiver leave;
  • critical illness leave;
  • child death leave;
  • crime-related child disappearance leave;
  • personal emergency leave;
  • domestic or sexual violence leave; and
  • reservist leave.

Ontario employers should be aware of the various changes to statutory leaves of absence and the new leaves of absence in the Employment Standards Act, all of which came into effect on January 1 2018. Employers should review and update their existing policies to ensure compliance with Bill 148, keeping in mind the changes and additions discussed in this update.

Parental and pregnancy leave

Parental leave

Before the changes brought about by Bill 148, Ontario employees were entitled to parental leave of:

  • 35 weeks if the employee took a pregnancy leave; or
  • 37 weeks if the employee took no pregnancy leave.

The Ontario government has extended parental leave to mirror the changes announced by the federal government to employment insurance, which gives parents the choice of receiving employment insurance benefits over a 35-week period at 55% of their insurable earnings or over a 61-week period at 33% of their insurable earnings. As of December 3 2017, Ontario employees are now entitled to parental leave of:

  • up to 61 weeks if the employee took a pregnancy leave; or
  • up to 63 weeks if the employee took no pregnancy leave.

This extended parental leave applies where the relevant child was born or came into the employee's custody, care and control for the first time on or after December 3 2017. For all other employees, the parental leave applicable before December 3 2017 applies.

In addition to updating their policies on leaves of absence, employers that offer supplementary employment insurance top-ups to employees taking pregnancy or parental leave should assess their policy documents given the newly extended leave periods and the changes to employment insurance. Employers should consider whether revisions are required to limit the number of weeks for which the top-up is payable or the total amount of top-up payable to ensure that their top-up plans are sustainable for the business in circumstances where employees elect to take a longer parental leave and receive employment insurance benefits at a reduced rate over an extended period.

Pregnancy leave

Pregnancy leave has been extended for employees:

  • whose child is not yet born at the end of the 17 weeks of pregnancy leave;
  • who have a still birth or miscarriage; or
  • whose child dies during the pregnancy leave.

As of January 1 2018, Bill 148 provides for an extension to the pregnancy leave for employees who are not entitled to parental leave. The end date will now fall on the later of:

  • 17 weeks after the pregnancy leave began; or
  • 12 weeks (increased from six weeks) after the birth, still birth or miscarriage.

In addition, Bill 148 clarifies who qualifies as a 'legally qualified medical practitioner'. Employers can request a certificate from such persons as proof of an employee's entitlement to pregnancy leave or the timing of that leave. Effective as of January 1 2018, a 'legally qualified medical practitioner' is:

  • a person qualified to practise as a physician;
  • a person qualified to practise as a midwife; or
  • a registered nurse holding an extended certificate of registration under the Nursing Act, 1991.

Family medical leave

From 2018, employees are entitled to a family medical leave of up to 28 weeks (increased from eight weeks) unpaid time off within a 52-week period to provide care or support to a family member with a serious medical condition that has a significant risk of death within 26 weeks. The 28 weeks need not be taken consecutively.

Family medical leave can be taken to provide care or support for:

  • an 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 child under legal guardianship of the employee or the employee's spouse;
  • a brother, step-brother, sister or step-sister of the employee;
  • a grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee's spouse;
  • a brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee;
  • a son-in-law or daughter-in-law of the employee or the employee's spouse;
  • an uncle or aunt of the employee or the employee's spouse;
  • a nephew or niece of the employee or the employee's spouse;
  • the spouse of the employee's grandchild, uncle, aunt, nephew or niece; or
  • a person who considers the employee to be like a family member.

Employees are entitled to the leave only on the provision of a certificate from a qualified health practitioner, which certifies that the individual has a serious medical condition with a significant risk of death occurring within 26 weeks. A 'qualified health practitioner' is defined as:

  • a person who is qualified to practise as a physician under the laws of the jurisdiction in which care or treatment is provided to the individual for whom the leave is taken; or
  • a registered nurse who holds an extended certificate of registration under the Nursing Act, 1991 or an individual who has an equivalent qualification under the laws of the jurisdiction in which care or treatment is provided to the individual for whom the leave is taken.

Previously, only a person qualified to practise medicine could provide the certificate required for the family medical leave.

Critical illness leave

Bill 148 has expanded critical illness leave, which was previously limited to employees' children, to include other family members. As of December 3 2017, critical illness leave can be taken by an employee who has been employed for at least six consecutive months to provide care or support to a critically ill minor child (ie, under the age of 18) or critically ill adult who is a family member of the employee. For these purposes, a 'family member' includes the same individuals for whom a family medical leave can be taken.

Employees are entitled to an unpaid leave of up to 37 weeks for a critically ill child and up to 17 weeks for a critically ill adult. 'Critically ill' means that the individual's baseline state of health has changed significantly and his or her life is at risk as a result of an illness or injury.

Employees are entitled to the leave only on the provision of a certificate from a qualified health practitioner, which:

  • certifies that the minor child or adult is critically ill and requires the care or support of one or more family members; and
  • sets out the period for which that care or support is required.

For these purposes, a 'qualified health practitioner' is broadly defined as a person qualified to practise as a physician, a registered nurse or a psychologist under the laws of the jurisdiction in which care or treatment is provided to the individual to whom the leave relates.

Before commencing the critical illness leave, or as soon as possible after its commencement, the employee must advise the employer of the leave in writing and provide a written plan indicating the weeks in which the leave will be taken. The plan may be amended if the employee requests permission from the employer to do so in writing and permission is granted in writing or the employee provides reasonable notice of the change.

Child death leave

As of January 1 2018, employees are entitled to up to 104 weeks' leave if a child, step-child, foster child or child under the legal guardianship of the employee dies for any reason. The employee must have been employed by the employer for at least six consecutive months to be entitled to the leave. Previously, a leave of absence was provided only where the child's death was crime-related.

As with the critical illness leave, employees must advise their employer of the leave in writing and provide a written plan indicating the weeks in which the leave will be taken. The plan may be amended if the employee requests permission from the employer to do so in writing and permission is granted in writing or the employee provides reasonable notice of the change.

Employers can request that employees provide evidence reasonable in the circumstances of their entitlement to take this leave. For example, an employer could request a copy of a death certificate or a death announcement.

Crime-related child disappearance leave

The crime-related child disappearance leave has increased from up to 52 weeks to up to 104 weeks. Employees who have been employed by the employer for at least six consecutive months will be entitled to the unpaid leave if a child, step-child, foster child or child under the legal guardianship of the employee disappears and the disappearance is likely a result of a crime.

If the child is found alive, the leave of absence ends 14 days after the child is found. If the child is deceased, the leave of absence ends at the end of the week in which the child is found. The employee is then entitled to the child death leave described above. Notification of such leave is the same as that of the critical illness leave.

Employers can request that employees provide evidence reasonable in the circumstances of their entitlement to take this leave. For example, an employer could request a note from the local police authority investigating the disappearance.

Personal emergency leave

Bill 148 has also brought about changes to personal emergency leave under the Employment Standards Act. Eligible employees can take up to 10 days, of which the first two days are paid, of job-protected leave each calendar year due to illness, injury and certain other emergencies and urgent matters.

Domestic or sexual violence leave

One new leave of absence introduced by Bill 148 is the domestic or sexual violence leave. This provides up to 10 individual days and up to 15 weeks of leave if an employee or his or her child experiences domestic or sexual violence, or the threat of domestic or sexual violence. The first five days of the leave each calendar year will be paid.(1)

Overlapping entitlements

It is worth noting that the same circumstances may entitle an employee to more than one type of leave of absence. For example, an employee may take a crime-related child disappearance leave where the child is found but requires care and support from the employee immediately following that leave. The employee could be eligible to take a family medical leave to provide that care and support. The employee would have the right to both leaves without reduction as a result of taking the earlier leave.(2)

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.

For further information on this topic please contact Alix Herber or Rachel Younan at Fasken by telephone (+1 416 366 8381) or email (aherber@fasken.com or ryounan@fasken.com). The Fasken website can be accessed at www.fasken.com.

Endnotes

(1) For further information on the personal emergency leave and new domestic or sexual violence leave, please see here.

(2) For further information on Bill 148, please see here.