by Leanne E. Standryk
The Ontario Labour Minister recently introduced Bill 21, entitled the Employment Standards Amendment Act (Leaves to Help Families), 2013. If passed, Bill 21 would create three (3) new unpaid leaves of absence under the Employment Standards Act, 2000 Employees would be entitled to take up to eight (8) weeks’ unpaid leave per calendar year where a qualified health practitioner certifies that any of the following individuals has a “serious medical condition”:
- The employee’s spouse.
- A parent, step-parent or foster parent of the employee or the employee’s spouse.
- A child, step-child or foster child of the employee or the employee’s spouse.
- A grandparent, step-grandparent, grandchild or step-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.
- Any individual prescribed as a family member for the purpose of this section.
The term “serious medical condition” does not appear to be defined in the proposed amendments. Bill 21 does not appear to impose any qualifying conditions on employees, such as a minimum length of service. All employees, including new hires, would be entitled to this leave. Family Caregiver leave must be taken in full-week periods and employees must advise their employers in writing of the leave.
Critically Ill Child Care Leave
Employees who have been employed for at least six (6) consecutive months would be entitled to up to thirty-seven (37) weeks of unpaid leave to care for their children if a qualified health practitioner certifies that (1) the child is critically ill and requires the care or support of one or more parents; and (2) specifies the period of time during which the child requires care or support. The amendment is a complement to recent amendments to the federal Employment Insurance Act (“EIA”), that create a new employment insurance benefit for parents of critically ill or injured children. The term “critically ill child” is the same as provided under the EIA with the addition of step-child and foster child under the ESA definition. There are also provisions that deal with situations where an employee has more than one critically ill child or where a child dies. Employees requesting a leave of this nature are required to advise their employer in writing with a written plan indicating the weeks during which the leave will be taken.
Crime-Related Child Death or Disappearance Leave
This is a newly proposed leave that would permit employees who have been employed for at least six (6) consecutive months an entitlement of up to fifty-two (52) weeks’ unpaid leave if a child of the employee (including a step-child or foster child) disappears and it is probable that the child disappeared as a result of a crime. Qualifying employees could also be entitled to up to one hundred and four (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. There are certain exceptions to the leave, including where the employee is charged with the crime or where the child is a party to the crime.
The provisions contemplate the possibility of an employee first taking an unpaid leave due to the disappearance of a child and, if the child is found dead during the employee’s leave, the employee could remain on unpaid leave up to a maximum of 104 weeks from the date of the child’s disappearance. As with the other proposed amendments, an employee requesting a leave of this nature is required to request the leave in writing and provide their employer with a written plan indicating the weeks during which the leave will be taken.
If the amendments are passed, the new proposed amendments would be separate and in addition to the current Family Medical Leave provisions contained in the ESA. In all cases, employees would be entitled to each of the proposed leaves of absence in addition to any current leave entitlements prescribed by the ESA. It is important to keep in mind the increasing number of statutory protected leaves when applying your workplace policies and/or collective agreements. Care must be taken to ensure compliance with the minimum statutory requirements. We will keep you updated on this Bill’s progress and provide you with a report on any further developments.