New types of leave: what you need to know

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Ontario employers should prepare for three new types of employee leave, expected to be approved by the Ontario Government in the near future.

Bill 21 would create the new family caregiver, critically ill child care and crime-related child death or disappearance leaves of absence, increasing the types of leaves from seven to 10.

Here’s what you need to know to be prepared:

Family Caregiver Leave

The proposed family caregiver leave would entitle employees to take up to eight weeks’ unpaid leave if a close family member including a spouse, parent, child or sibling is diagnosed with a “serious medical condition”. There is no minimum service requirement so new employees are entitled to this leave from their first week.

 “The government intends this leave to allow adult children to care for aging parents,” Filion Wakely Thorup Angeletti lawyer Christopher Sinal said. “To date the government has provided little guidance on the meaning of “serious medical condition”, save from suggesting in legislative debates that, given that the aim of the legislation is at least in part to facilitate care of elderly family members, a broken hip would suffice.”

One criticism of the draft conditions is that it must be taken in whole week periods, so if your employee needs to take three days it counts as a full week of their entitlement. Finally, where the employee fails to give notice in advance and he or she was capable of doing so, or where the employee fails to give notice as soon as possible after taking the leave, it may be possible for the employer to discipline the employee. However, such discipline must not deny the employee their entitlement to family caregiver leave.

Critically Ill Child Care Leave

Employees with a minimum of six consecutive months of employment with their employers would be entitled to up to 37 weeks of unpaid leave to care for their children, included step-children and foster children, if they are diagnosed with a critical illness.

Where the health certificate states that a child requires less than 37 weeks of care, the employee will only be entitled to take that amount of time off under the leave. Another important point is that 37 weeks is the maximum, even if more than one child is certified as critically ill due to the same event.

Employees wishing to take this leave would have to provide their employers with a written plan indicating the weeks during which the leave will be taken. However, Sinal said it was likely that the Ministry of Labour would find employees remain entitled to the leave as long as they have the required medical certificate, regardless of whether the employee produces a plan.

“Given the extended length of the leave, this could prove problematic to employers attempting to organize their workforce,” he said.

As with the proposed family caregiver leave, time must be taken in full weeks.

Crime-Related Child Death or Disappearance Leave

This very specific leave gives employees up to 52 weeks’ unpaid leave if their child disappears as a result of a crime.

Employees would be required to have a minimum of six consecutive months of employment with their employers to be entitled to the leave.

“Perhaps unsurprisingly, there is no indication in the Bill of how the probability that a child has disappeared as a result of a crime is to be assessed,” Sinal said. “The discretion appears to fall on the employer, particularly given that the proposed legislation would allow employers to require an employee who takes such a leave to provide ‘evidence reasonable in the circumstances of the employee’s entitlement to the leave.’ ”

Employees would be entitled to a further 14 days leave if their child is found, and up to 104 weeks’ unpaid leave if a child of the employee dies and it is probable that the child has died as a result of a crime.

Employees wishing to take a leave under this category would also have to provide their employers with a written plan indicating the weeks during which the leave will be taken. Again, it is unlikely that failure to provide such a plan would disentitle the employee from taking the leave.

Both the ill child care and crime-related child death or disappearance leave dovetail with existing federal income supports.

 

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