Health and Safety
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By Sarah B. Hood


Businesses face a growing need to accommodate hospice palliative care.


It seems like a paradox: Canadians are living longer, yet the death rate is expected to climb steadily over the next 20 years as the population bulge of the Baby Boom approaches old age. More than 252,000 Canadians died in 2010; by 2020, the figure is expected to rise to about 300,000. Consequently, we’re facing a rising demand for hospice palliative care – the range of supports that can relieve suffering and improve quality of life while somebody is dying.


“In Canada, the majority of hospices are not places, but services offered in the home,” said Rick Firth, CEO of Hospice Palliative Care Ontario (HPCO). The Canadian Hospice Palliative Care Association (CHPCA) tells us that in Ontario, more than half of palliative care clients are cared for primarily by their spouses or partners, and almost one-third by their children or children-in-law.


Many of these caregivers are currently eligible for two different types of employment leave, explains lawyer Lisa C. Cabel, a partner with Borden Ladner Gervais LLP. Under the Ontario Employment Standards Act, 2000 (ESA), most employees of companies with 50 employees or more are entitled to take ten days of personal emergency leave per year. They may also draw upon family medical leave to care for a relative who falls ill.


Ontario’s ESA defines a terminal illness as “a serious medical condition with a significant risk of death occurring within a period of 26 weeks.” Family medical leave to offer care to a terminally ill relative of the employee (including a spouse, a common-law partner or an in-law) “who is dependent on the employee for care or assistance” is generally available for a maximum of six weeks. If the relative is still alive when the 26-week period has ended, further leave may be available.


Misunderstanding occasionally arises regarding the employer’s right to information about the nature of the illness, Cabel says. Because the information pertains to someone other than an employee, “employers can learn the prognosis in terms of when would a return to work would be likely, but they cannot know the diagnosis. When dealing with a family member [instead of the employee themselves], that is not relevant. The only thing you need to know is the prognosis today.”


This type of leave is normally job-protected. Employees “need to be able to ensure that their job is there and they don’t lose their position because they’ve exercised their rights under the Act,” Cabel said. “Employers understand that, but whether they really understand how to implement that is a different question; that’s something we often give advice on.”

Whether the leave necessitates hiring a temporary worker or passing duties to another employer for the duration of the leave, she explained, “Communication is key amongst those employees, and also ensuring that, if you have to hire, it’s a temporary contract – it’s like a maternity leave.”


The Canada Labour Code provides for EI-eligible workers to claim up to eight weeks of compassionate care leave, with six weeks EI compassionate care benefits plus a two-week waiting period. Employers may extend their own compassionate care benefits to employees, without affecting their EI premium rate reduction.


“Some companies are topping up the federal government plan and offering eight weeks leave with six weeks paid,” said Sharon Baxter, executive director of CHPCA. “Some are topping up to full pay; some are actually extending it to allow for additional weeks.”


Pharmaceutical firm GlaxoSmithKline has been a leader in this area.


“GSK were the first company in Canada to offer what we call a Compassionate Care Benefit; that was before the federal government had one in 2004,” Baxter said. “They gave 13 weeks over and above the government plan that can be taken within any two-year period.” Also, in partnership with the CHPCA, the GlaxoSmithKline Foundation has created a public awareness and social marketing campaign called the Living Lessons initiative to support patients, their families and health care providers.


Other forward-thinking employers are developing their own compassionate care policies.

“Workplaces need to look at this because it just makes good business sense,” said Firth. “Providing accommodations for people who are caring for someone who is dying is one of the ways to reduce caregiver stress, avoid burnout and improve the overall performance. Workers who are supported through situations like this are more loyal and are more likely to stay with the company.”


There is also now more risk of legal action than ever before in cases where accommodation is not given. In an article published in Hospital News (April 10, 2013), Cabel emphasized that “[t]he law in this area is rapidly evolving as more and more employees seek accommodation from their employers.” An important recent decision before the Human Rights Tribunal of Ontario (Devaney v. ZRV Holdings Ltd.) concerned an employee who had been terminated “after his employer became frustrated with his continued absences relating to his efforts to take care of his ailing mother,” Cabel reported.


The Canada Labour Code provides for EI-eligible workers to claim up to eight weeks of compassionate care leave, with six weeks EI compassionate care benefits plus a two-week waiting period.



“[T]he Tribunal rejected the employer’s claims that Mr. Devaney’s absences were having a negative effect on the performance of his team” and “found that the employer could have accommodated Mr. Devaney’s needs without undue hardship.” Devaney was awarded $15,000, and his former employer was ordered to develop workplace human rights policy and training.


There can also be a danger, however, in offering accommodation on a case-by-case basis. “Many companies are saying they’re doing it as one-offs, and we’re saying that they should put it into their employment policies, so that they’re consistent, and so that they actually get the credit for being compassionate employers,” Baxter said. “If it’s not in your HR policies, then you run the risk of being inconsistent within your organization, which is a problem.”

Besides leave provisions, a compassionate care policy could include such items as more flexible work hours, says Firth, along with “being aware of what resources are available in the local community. Community organizations can help employees find out about support and connect with caregiving.”


He stresses that flexibility is key.


“If you’re a caregiver, life is hectic and you’re always facing last-minute crisis,” said Firth. Also, although employers are only required to accommodate employees caring for family members, “it’s not uncommon in rural communities that the caregiver is a friend or neighbour.”


For the employer, compassionate care “is about supporting employees so they don’t have to make the choice between keeping their job and caring for their loved one,” said Firth. In some situations, a caregiver may be able to keep in touch with colleagues via WiFi and smartphone. Expecting a normal level of output “might be unrealistic,” he pointed out, “but keeping that employee engaged is probably more beneficial than losing them altogether.”

When a bereaved employee returns to work, Firth believes that, while confidentiality must be respected, it’s appropriate to ask, “Have you spoken with your coworkers about this?” and to provide colleagues with information about how to support a grieving co-worker, which is often available in pamphlet form from local funeral directors.


“There needs to be a recognition that grieving is not a time-defined, linear process,” he said; an employee may still be in a fragile state a year after returning to work.

“The conversation about aging and dying is becoming more normal,” said Firth. “The reality is that we’re all going to die, and as a society we should be providing the same levels of service that we do with birth, and all the stages in between.”

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