By Michael Donsky
On April 29, 2014, the Employment Standards Amendments Act (Leaves to Help Families), 2014, passed third reading in the Ontario legislature.
As such, three new types of leaves of absence come into effect under the Employment Standards Act, 2000 (the "Act"), effective October 29, 2014.
According to Kevin Flynn, the Minister of Labour, "The one thing working Ontarians need most when it comes to caring for seriously ill or injured family members is time to be with their loved ones." In order to satisfy that need, the Government of Ontario has established three new types of leave.
It will be up to HR professionals to make these new leaves work in practice.
As with the other types of leave provided under the Act, these new types of leaves are provided for under Part XIV of the Act and are all leaves given without pay. The types of leave coming into effect October 29, 2014 are:
• Family Caregiver Leave
• Critically Ill Child Care Leave
• Crime-Related Child Death or Disappearance Leave
Family Caregiver Leave ("FC Leave")
Now Section 49.3 of the Act, FC Leave provides an employee with up to eight weeks of leave each calendar year where he or she must provide care or support to a family member. While the medical condition itself can be either chronic or episodic, a qualified health practitioner must issue a certificate stating the individual in question has a serious medical condition.
Qualifying family members include the employee's spouse; either the employee or the spouse's parent (including "step" or "foster"); either the employee or the spouse's child (including "step" or "foster"); either the employee or the spouse's grandparent or grandchild (including "step"); the spouse of the employee's child; the employee's sibling; a dependant relative or any other individual prescribed as a family member under the regulations.
The employee can take no more than eight weeks leave for each individual described, but can take a further eight weeks if it's for a different family member.
Any employee wishing to take such leave must advise the employer in writing before or as soon as possible after beginning such leave. If requested, a copy of the referenced certificate must be provided.
FC Leave is in addition to any employee entitlements to Family Medical Leave, CIC Leave, CRCDD Leave or Personal Emergency Leave.
Critically Ill Child Care Leave ("CIC Leave")
CIC Leave under Section 49.4 of the Act requires that the employee first be employed by his or her employer for at least six consecutive months. The employee, if qualified, is entitled to take up to 37 weeks leave to provide care or support to a critically ill child of the employee.
Again, a certificate from a qualified health practitioner is required and it must state both that the child is critically ill and requires care from one or more parents and it must set out the period during which the child requires such care or support. If the certificate states a period of less than 37 weeks, then the leave is to be no longer than the period in the certificate.
An employee may have more than one child critically ill as a result of the same event but, nonetheless, can take no more than the statutory 37 weeks as CIC Leave.
If a child dies while the employee is taking CIC Leave, the leave ends at the end of the week that the child dies, unless there is more than one critically sick child at the time. In the latter case, the leave ends when it otherwise would be based upon the Act's leave limitations or the end of the week when the last child dies.
Any employee wishing to take such leave must advise the employer in writing, setting out the plan regarding the weeks in which he or she will be taking leave. Such notice should be before or as soon as possible after beginning such leave. If requested, a copy of the referenced certificate must be provided.
CIC Leave is in addition to any employee entitlements to Family Medical Leave, FC Leave, CRCDD Leave and Personal Emergency Leave.
Crime-Related Child Death or Disappearance Leave ("CRCDD Leave")
CRCDD Leave under Section 49.5 of the Act requires that the employee be employed by the employer for at least six consecutive months. The employee, if qualified, is entitled to take up to 52 weeks leave if the child disappears as a result of a crime.
The employee is not entitled to take a leave of absence if the employee is charged with the crime or "if it is probable, considering the circumstances, that the child was a party to the crime."
Further, if the employee does take a leave of absence but, during that leave, circumstances change such that it "no longer seems probable that the child died or disappeared as a result of a crime," the leave ends on the day on which it no longer seems probable.
If during the 52-week period, the child is found alive, the employee may take 14 days leave after the day the child is found. If the child is found dead, the employee may take 104 weeks leave from the day the child disappeared.
Any employee wishing to take such leave must advise the employer in writing, setting out the plan regarding the weeks in which he or she will be taking leave. Such notice should be before or as soon as possible after beginning such leave.
CRCDD Leave is in addition to any employee entitlements to Family Medical Leave, FC Leave, CIC Leave and Personal Emergency Leave.
Summary
The new types of leave essentially build on the existing Family Medical Leave provided under Section 49.1 of the Act but are generally in addition to such Family Medical Leave.
It will be important to understand what is provided by these new types of leave, who may qualify for them and how they interact with the existing leave provisions under the Act. It is also important to note that while the leaves in question may be cumulative, the necessary conditions for a given leave to be available are not always identical.
For example, the specified family members for which Family Medical Leave may be available are not identical to the specified family members for whom FC Leave or CIC Leave may be available. The leave can be cumulative only where the family member qualifies under each heading.
Further, while employers do not have to pay wages to an employee on the above-noted types of leave, an employer must not threaten, fire or penalize any employee for taking or planning on taking such types of leave.
Michael Donsky is a partner with Fogler, Rubinoff LLP.