As a small business owner, it is important to understand your legal rights as an employer, and the rights of your employees. Ontario’s Employment Standards Act, 2000 (ESA) sets the minimum workplace standards and outlines employee entitlements to certain unpaid, job-protected leaves of absence.
What are the legal entitlements when it comes to leaves of absence for family/child care?
Specific to family/child care, employers must provide employees with unpaid and job-protected leaves as follows:
Family responsibility leave
Your employees can avail of up to three days of this unpaid, job-protected leave each calendar year for an illness, injury, medical emergency, or urgent matter relating to certain relatives. Special rules may apply to some occupations.
This leave may be availed for an urgent matter concerning the employee’s family. An urgent matter is defined as an occurrence that is unplanned or out of the employee’s control. But one that may have serious negative consequences if not responded to. For instance, if the employee’s babysitter calls in sick or if there is a break-in at the house of the employee’s elderly parents who are distraught and require the employee’s help.
An employee is eligible for the family responsibility leave after they have worked for an employer for at least two consecutive weeks.
Employers can’t ask for a medical note from a health professional when an employee takes the leave due to the illness, injury or medical emergency of a specified relative. They can’t press for details of the relative’s medical condition either. The employer may only require the employee to disclose the name of the relative, and their relationship to the employee, and a statement that the absence was required because of the relative’s injury, illness or medical emergency.
Family caregiver leave
This leave is an unpaid, job-protected leave of up to eight weeks per calendar year. All employees covered by the ESA (full-time, part-time, permanent or contract) may be entitled to this leave. The employee may choose to take the eight weeks consecutively or separately.
An employee may take this leave to care for certain family members provided a qualified health practitioner has issued a certificate saying that the family member has a serious medical condition. The certificate need not specify the medical condition.
The employee must submit a medical certificate to avail this leave and inform the employer in writing that they will be availing of the family caregiver leave.
Family medical leave
This is an unpaid, job-protected leave of up to 28 weeks in a 52-week period. The family medical leave may be taken to provide care or support to certain family members or for a person who considers the employee to be like a family member. To be eligible for the leave, the employee must have a certificate from a qualified health practitioner stating that the said family member has a serious medical condition with a high risk of death within a period of 26 weeks.
Under the federal Employment Insurance Act, 26 weeks of employment insurance benefits may be paid to eligible staff who are on a family medical leave.
The employee must submit a medical certificate to avail this leave. The certificate must have the name of the family member and say that the family member has a serious medical condition with a significant risk of death occurring within a specified 26-week period. It does not have to specify the medical condition.
Critical illness leave
This is an unpaid, job-protected leave of absence of up to 37 weeks to care for a critically ill minor child (biological child, step-child, foster child or child who is under legal guardianship), or 17 weeks to look after a critically ill adult within a 52-week period.
A medical certificate is required to avail of this leave. The certificate should be issued by a qualified health practitioner and confirm the critical illness of the adult or minor child concerned and specify the period for which they require the employee’s care or support. The requirement for the medical certificate is non-negotiable.
Employees must have worked for their employers for at least six consecutive months to be eligible for the critical illness leave.
Employees who take the critical illness leave may be eligible for Employment Insurance (EI) special benefits for caregivers of critically ill minor children who are family members for up to 35 weeks. For family members of critically ill adults, the benefits duration is up to 15 weeks.
Frequently Asked Questions
Should employers pay employees while they are on a leave of absence?
No. Employees are entitled to unpaid leave under the ESA. Employers are not required to pay employees.
When should employees notify employers about a leave of absence?
As soon as possible. Employees must inform employers before the leave begins or if not possible, shortly after. For extended leaves of absence, a notice in writing is mandatory.
Do employers have to keep the employee’s jobs for them while they are on leave?
Yes. Employees are entitled to job-protected leave. You may hire a replacement worker to cover the job while the employee is on leave, but he or she is entitled to return to that position or a comparable job when their leave is finished.
Do you have questions about accommodating employee requests for leaves of absence related to child care?
Peninsula can help. Our experts can assist you in developing company policies, and support you with any other HR, health & safety, or employee management matters that arise. To learn more about how our services can benefit your business, call an expert today: (833) 247-3652.