by Leanne E. Standryk
The Ontario government has introduced Bill 30, the Family Caregiver Leave Act (Employment Standards Amendment), 2011. Bill 30, if passed would amend the Employment Standards Act, 2000 (ESA) to permit employees to take an unpaid leave of absence of up to eight weeks in order to provide care or support to a sick family member.
Pursuant to Bill 30, an employee would be entitled to an unpaid leave of absence to provide “care or support” to the following family members/individuals who have 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
- relative of the employee who is dependent on the employee for care or assistance
- any individual prescribed under the regulations as a family member
In addition to the requirement that the employee provide “care or support” to one of the individuals noted, the following additional conditions and limitations apply to the leave:
- An employee would only be able to take up to eight weeks’ leave per calendar year for each individual noted above.
- A qualified health practitioner must issue a certificate stating that the individual to be cared for or supported has a “serious medical condition.” (Serious medical condition is not defined in the provisions of the Bill). The employee only needs to provide the certificate “if requested by the employer.”
- An employee must advise the employer in writing of his/her intention to take the leave before taking it or as soon as possible after beginning the leave.
- An employee may take the leave of absence only in full week periods.
Family Caregiver Leave, Family Medical Leave and Personal Emergency Leave: A Comparison The focus of Family Caregiver Leave is to permit an employee to support family members with a “serious medical condition.” It does not cover personal illnesses. The entitlement to Family Medical Leave applies in limited circumstances where there is a “serious medical condition with a significant risk of death” to the family member occurring within a 26-week period.
The Emergency leave provisions apply only to work places with more than 50 employees and provides employees with 10 unpaid emergency days’ leave to attend to personal illnesses.
Employees may take an emergency leave day to deal with the death, illness, injury, medical emergency or other “urgent” matter concerning certain specified individuals defined in the ESA.
Family Caregiver leave and Family Medical leave apply to all workplaces regardless of the number of individuals employed.
The proposed provisions of Bill 30 are clear that the entitlement to family caregiver leave is in addition to the existing prescribed leaves of absence set out in the ESA. In other words, the entitlements are separate and days spent off on one leave could not be counted as days spent off on another.
The general provisions concerning leaves under ss. 51 – 53 of the ESA would continue to apply to the proposed family caregiver leave. Such rights include the right to be reinstated to the same position held prior to the leave or a “comparable” position (at equal or greater pay) if the position no longer existed; continued participation in benefit plans unless they elect, in writing, not to do so.
The introduction of Family Caregiver Leave would represent the sixth unpaid leave of absence under the ESA. From a management perspective, it is important that you structure your operations to minimize any potential disruption resulting from employees who exercise their rights to a leave. This may involve the hiring of temporary employees pursuant to an express written temporary contract or perhaps it may involve proper notification to your employees that from time to time they may be called upon to provide assistance with duties and responsibilities outside their current position description. For unionized workplaces, management should review their collective agreements to ensure that they are consistent with the ESA leave provision. The foregoing is provided to you for information purposes only. We caution you to obtain legal advice specific to your situation in all circumstances.