On March 5, 2013, the Government of Ontario introduced Bill 21, Employment Standards Amendment Act (Leaves to Help Families), 2013. On April 29, 2014, Bill 21 passed Third Reading in the Ontario Legislature and comes into force six months later, on October 29, 2014.
Effective October 29, 2014, the Ontario Employment Standards Act, 2000 (the “ESA”) will be amended to include three additional unpaid leaves of absence:
- Family Caregiver Leave
- Critically Ill Child Care Leave
- Crime-Related Child Death/Disappearance Leave
The new leaves provide employees with certain rights for leaves of absence under the ESA, such as reinstatement, vacation accrual and protection from reprisal. The new leaves of absence are in addition to existing leaves of absence in the ESA, including Family Medical Leave and Personal Emergency Leave.
Family Caregiver Leave
Employees will be entitled to up to eight (8) weeks of unpaid Family Caregiver Leave in each calendar year to care for each ill relative specified in Bill 21. The weeks of leave must be taken in full weeks, but do not have to be taken consecutively or in a single block. There is no minimum service requirement for eligibility to take Family Caregiver Leave, or pro-rating for part years.
An employee may take Family Caregiver Leave if caring for or supporting the following specified relatives:
- The employee’s spouse.
- A parent of the employee or the employee’s spouse.
- A child of the employee or the employee’s spouse.
- A grandparent or grandchild of the employee or the employee’s spouse.
- The spouse of a child of the employee.
- The employee’s brother or sister.
- A relative of the employee who is dependent on the employee for care or assistance.
The scope of this leave also includes step-children, step-parents and foster children.
Employees are eligible for Family Caregiver Leave if they have a certificate from a “qualified health practitioner” stating that the specified relative has a “serious medical condition”. The term “serious medical condition” is not defined in Bill 21, except that it can be chronic or episodic.
A “qualified health practitioner” means:
“a person who is 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”
This means an employee could provide a certificate obtained outside Ontario, which could be difficult for employers to verify.
Employees who wish to take leave must advise the employer in writing that they wish to take Family Caregiver Leave. An employee may take the leave before providing notice, and then advise the employer “as soon as possible”. Employees must provide a copy of the certificate “as soon as possible”, upon request from the employer.
Critically Ill Child Care Leave
Employees with at least six consecutive months’ of service may qualify for up to 37 weeks of unpaid Critically Ill Child Care Leave. Upon request from the employer, an employee must provide a copy of a certificate from a “qualified health practitioner” (defined in the same way as under Family Caregiver Leave) that states:
- The child is critically ill and requires care or support of one or more parents and
- The period during which the child requires care or support.
The child must be under 18 years of age, and “critically ill”, meaning “…a child whose baseline state of health has significantly changed and whose life is at risk as a result of an illness or injury.” The terms “baseline state of health” and “significantly changed” are not defined, and it remains to be seen how they will be applied in Ontario.
The employee notice requirements are similar to those for Family Caregiver Leave, i.e. providing the employer with notice and a copy of the certificate upon request “as soon as possible.” Additionally, the employee must provide a “written plan” that indicates the weeks in which he or she will take the leave.
Crime-Related Child Death Or Disappearance Leave
Employees with at least six consecutive months’ of service may qualify for unpaid Crime-Related Child Death or Disappearance Leave. “Crime” means an offence under the Canada Criminal Code, and “child” means under 18 years of age.
An employee can take up to 104 weeks in the event of a crime-related death of employee’s child, step-child or foster child. A “crime-related death” means the employee’s child, step-child or foster child has died and it is “probable, considering the circumstances, that the child died as a result of a crime.”
An employee can take up to 52 weeks in the event of a crime-related disappearance of employee’s child, step-child or foster child. A “crime-related disappearance” means the child has disappeared and it is “probable, considering the circumstances that the child disappeared as a result of a crime.”
The leave ends after 104/52 weeks, or the day on which it “no longer seems probable” that the child died or disappeared as the result of a crime.
An employee is not eligible for this type of leave if s/he is charged with a crime or if it is probable, considering the circumstances, that the child was a party to the crime.
Employees must advise the employer in writing that they wish to take the leave and provide a “written plan” that indicates the weeks in which he or she will take the leave. However, an employee may take the leave, and then advise the employer and provide the written plan “as soon as possible”.
An Employer may require an employee to provide “evidence reasonable in the circumstances” to entitlement to leave. It is not clear what evidence could be requested in these circumstances, and what would be considered “reasonable”.
Given the possibility that circumstances (and eligibility under the ESA) may change as police investigate the death or disappearance of the child, employers may wish to periodically obtain information to confirm an employee’s continued eligibility for the leave of absence.
Implications for Ontario Employers
Ontario employers should review existing leave of absence policies and procedures, and make any necessary amendments to handbooks, employment contracts, policies, collective agreements etc. Of particular interest to employers may be the policies and procedures relating to verifying information provided in a certificate from a “qualified health practitioner.”
Given the broad circumstances when an employee may qualify and the possibility that an employee could take multiple leaves for different relatives each calendar year, Family Caregiver Leave appears most likely to affect Ontario workplaces. We will monitor the impact of the new leaves, including any decisions that further define the eligibility criteria.