On December 3, 2007 the Ontario government quietly passed the Fairness for Military Families Act which amended the Employment Standards Act and created a new category of leave for employees who are also members of the Army, Navy and Air Force reserves. Currently there are roughly 12,000 reservists in Ontario who work with the Canadian Forces on a part-time basis while concurrently fulfilling their regular employment obligations.
Members of the reserves participate in every single overseas operation of the Canadian Forces including deployments to such places as Afghanistan and the Sudan, and they have also played a major role in domestic emergency relief efforts such as the 1998 ice storm. Since reserve service is almost entirely voluntary, the participation in an international or domestic operation is normally a choice that the individual would make based on their desire and availability. For example, there are more than 500 reservists in Ontario that have volunteered for service in Afghanistan in 2008.
Similar legislation has already been enacted in Saskatchewan, Manitoba, Nova Scotia and Prince Edward Island, and the federal government recently announced its plans to amend the Canada Labour Code to include job-protected leave for part-time servicemen and women.
It is for these reasons that the Liberal government has introduced s. 50.2 of the Employment Standards Act entitled “Reservist Leave.” Prior to this amendment, reservists who chose to participate in an international or domestic operation were required to either request a leave of absence from their employer or resign from their jobs. Under ss. 50.2(1), employers are now required to grant reservist employees a job-protected unpaid leave of absence for the period that the employee is either a) “...deployed to a Canadian Forces operation outside Canada”; or b) “...deployed to a Canadian Forces operation inside Canada that is or will be providing assistance in dealing with an emergency or with its aftermath.”
Under ss. 50.2(2), an overseas deployment would include any pre- and post-deployment activities that the reservist would be required to attend such as pre-deployment training and post-deployment debriefing.
A domestic “emergency” under ss. 50.2(11) is defined as “...a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature, a disease or other health risk, an accident or an act whether intentional or otherwise; or... a rescue operation.”
The typical duration of an overseas deployment for a reservist is approximately nine months to one year, and the average deployment for a domestic emergency is one to two weeks. Unlike other forms of unpaid leave that are outlined in the Employment Standards Act, for reservist leave, the employer is not required to make contributions to the employee’s benefits plans under s. 51(1) and the reservist employee does not have an automatic right to participate in their benefits plan while on leave.The logic behind this exclusion is the understanding that an employee on reservist leave will be entitled to similar benefits at the expense of the federal Department of National Defence.
A new regulation will eventually be drafted that will establish the prescribed period of notice that a reservist employee will have to provide to his/her employer prior to the commencement and conclusion of the leave; however, until then, s. 50.2 simply requires that reservists give their employers “reasonable notice” and inform them “as soon as possible.”
It is important to note that this provision does not apply to the normal activities that a reservist would participate in such as evening, weekend, and summer training. For such activities, the reservist employee will still have to coordinate their availability with their employer.