From pregnancy leave to reservist leave, employers in Ontario are familiar with statutory leaves of absence and their associated protections. Employees have the right to certain periods of time away from work without losing their jobs. At the end of the leave, employers in Ontario are required to return employees to their same position, or, if the same position no longer exists, to a comparable position. Employers are not permitted to reprise against employees who take or plan to take a statutory leave of absence. During the leave of absence, employers are generally required to continue to make the employer-portion of any contributions to benefits plans that employees are entitled to.
Included among the many changes to the Employment Standards Act, 2000 (the "ESA") brought about by the Fair Workplaces, Better Jobs Act, 2017 (referred to as "Bill 148") are changes to existing leaves of absence and the introduction of new leaves of absence for Ontario employees.
The following leaves of absence are now available to employees in Ontario:
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Employers in Ontario should be aware of the following changes to statutory leaves of absence and the new leaves of absence in the ESA, all of which are in effect January 1, 2018. Employers should take care to review and update their existing policies to ensure compliance with Bill 148, keeping in mind the changes and additions discussed below.
Extension to Parental and Pregnancy Leaves
Parental Leave
Prior to the changes brought about by Bill 148, employees in Ontario were entitled to Parental Leave of 35 weeks if the employee took a Pregnancy Leave or 37 weeks if the employee did not take a Pregnancy Leave.
To mirror the changes announced by the federal government to Employment Insurance ("EI"), which gives parents the choice of receiving EI benefits over 35 weeks at 55% of their insurable earnings or EI benefits over a 61 week period at 33% of their insurable earnings, the Ontario government has extended Parental Leave. Indeed, as of December 3, 2017, employees in Ontario are now entitled to take:
- up to 61 weeks of Parental Leave, if the employee took a Pregnancy Leave; or
- up to 63 weeks of Parental Leave, if the employee did not take a Pregnancy Leave.
This extended Parental Leave applies where the child in respect of whom the employee takes Parental Leave was born or came into the employee's custody, care and control for the first time on or after December 3, 2017. For all other employees, the Parental Leave applicable prior to December 3, 2017 applies.
In addition to updating their policies on leaves of absence, employers who offer supplementary employment insurance top-ups to employees taking Pregnancy and/or Parental Leave should assess their policy documents given the newly extended leave periods and the changes to EI. Employers should consider whether revisions are required to limit the number of weeks for which the top-up is payable and/or the total amount of top-up payable to ensure that their top-up plans are sustainable for the business in the circumstances where employees elect to take a longer Parental Leave and receive EI benefits at a reduced rate over an extended period of time.
Pregnancy Leave
Pregnancy Leave has been extended for those employees:
- whose child is not yet born at the end of the 17 weeks of Pregnancy Leave;
- who have a still-birth or miscarriage; or
- whose child dies during the Pregnancy Leave.
As of January 1, 2018, Bill 148 provides for an extension to the Pregnancy Leave end date for such employees who are not entitled to Parental Leave. The end date will now fall on the later of: (i) 17 weeks after the Pregnancy Leave began; and (ii) 12 weeks (increased from 6 weeks) after the birth, still-birth or miscarriage.
In addition to this extended Pregnancy Leave, the Bill 148 amendments have also brought clarification to who qualifies as a "legally qualified medical practitioner". Employers are permitted to request a certificate from such persons as proof of the employee's entitlement to Pregnancy Leave or the timing of that leave. Effective January 1, 2018, a "legally qualified medical practitioner" means: (a) a person who is qualified to practice as a physician; (b) a person who is qualified to practice as a midwife, or (c) a registered nurse who holds an extended certificate of registration under the Nursing Act, 1991.
Extension to Family Medical Leave
As of the new year, employees will be entitled to an increased Family Medical Leave of up to 28 weeks (up from eight weeks) unpaid time off within a 52-week period to provide care or support to a family member with a serious medical condition with a significant risk of death within 26 weeks. The 28 weeks do not need to be taken consecutively.
Family Medical Leave can be taken to provide care or support for any of the following persons:
- 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 child who is under legal guardianship of the employee or the employee's spouse.
- A brother, step-brother, sister or step-sister of the employee.
- A grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee's spouse.
- A brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee.
- A son-in-law or daughter-in-law of the employee or the employee's spouse.
- An uncle or aunt of the employee or the employee's spouse.
- A nephew or niece of the employee or the employee's spouse.
- The spouse of the employee's grandchild, uncle, aunt, nephew or niece.
- A person who considers the employee to be like a family member.
Employees are only entitled to the leave upon provision of a certificate from a qualified health practitioner, which certifies that the individual has a serious medical condition with a significant risk of death occurring within a period of up to 26 weeks. The definition of "qualified health practitioner" has been expanded to mean: (a) a person who is qualified to practise as a physician under the laws of the jurisdiction in which care or treatment is provided to the individual for whom the leave is taken; or (b) a registered nurse who holds an extended certificate of registration under the Nursing Act, 1991, or an individual who has an equivalent qualification under the laws of the jurisdiction in which care or treatment is provided to the individual for whom the leave is taken. Previously, only a person qualified to practice medicine was able to provide the certificate required for the Family Medical Leave.
Expansion of Critical Illness Leave
Previously limited to critically ill children of employees in Ontario, Bill 148 has expanded this leave to other family members. As of December 3, 2017, Critical Illness Leave can be taken by an employee who has been employed for at least six consecutive months to provide care or support to a critically ill minor child (i.e. under the age of 18), or critically ill adult who is a family member of the employee. For the purposes of Critical Illness Leave, a family member includes the same individuals for whom a Family Medical Leave can be taken, as detailed above.
Employees are entitled to an unpaid leave of up to 37 weeks for a critically ill child and up to 17 weeks for a critically ill adult. "Critically ill" means that the child or adult's baseline state of health has significantly changed and their life is at risk as a result of an illness or injury.
Employees are only entitled to the leave upon provision of a certificate from a qualified health practitioner, which certifies that the minor child or adult is critically ill and requires the care or support of one or more family members and sets out the period for which the person requires that care or support. For the purposes of Critical Illness Leave, a "qualified health practitioner" is broadly defined as a person who is qualified to practice as a physician, a registered nurse or a psychologist under the laws of the jurisdiction in which care or treatment is provided to the individual to whom the leave relates.
Before commencing the Critical Illness Leave or as soon as possible after beginning it, an employee must advise the employer of the leave, in writing, and provide to the employer a written plan indicating the weeks in which the leave will be taken. Variations to that plan may be made from time to time if the employee requests permission from the employer to do so in writing and the employer grants that permission in writing or the employee provides reasonable notice of the change.
New Child Death Leave
As of January 1, 2018, employees will be entitled to up to 104 weeks of leave if a child, step child, foster child, or child under the legal guardianship of the employee dies, for any reason. The employee must have been employed by the employer for at least six consecutive months to be entitled to the leave. Previously, a leave of absence was only provided where the child's death was crime-related.
As with the Critical Illness Leave, an employee must advise their employer of the leave, in writing, and provide a written plan indicating the weeks in which the leave will be taken. Variations to that plan may be made from time to time if the employee requests permission from the employer to do so in writing, and the employer grants that permission in writing or the employee provides reasonable notice of the change.
An employer is entitled to request that the employee provide evidence reasonable in the circumstances of their entitlement to take this leave. For example, an employer could request a copy of a death certificate or a death announcement.
Extension to Crime-Related Child Disappearance Leave
Going forward, the Crime-Related Child Disappearance Leave will be increased from up to 52 weeks to up to 104 weeks. Employees who have been employed by the employer for at least six consecutive months will be entitled to the unpaid leave if a child, stepchild, foster child, or child under the legal guardianship of the employee, disappears and it is probable that the child disappeared as a result of a crime.
If the child is found alive, the leave of absences ends 14 days after the child is found. If the child is deceased, then the leave of absence ends at the end of the week in which the child is found. The employee would then be entitled to the Child Death Leave described above. Notification of such leave is the same as the Critical Illness Leave above.
An employer is entitled to request that the employee provide evidence reasonable in the circumstances of their entitlement to take this leave. For example, the employer could request a note from the local police authority investigating the disappearance.
Changes to Personal Emergency Leave
As we have previously reported, Bill 148 has also brought about changes to the Personal Emergency Leave provisions of the ESA. Eligible employees have the right to take up to 10 days, the first two days of which are paid, of job-protected leave each calendar year due to illness, injury and certain other emergencies and urgent matters. For more information on these changes, click here.
New Domestic or Sexual Violence Leave
A new leave of absence introduced by Bill 148, is the Domestic or Sexual Violence Leave. This leave provides up to 10 individual days of leave and up to 15 weeks of leave if the employee or their child experiences domestic or sexual violence or the threat of domestic or sexual violence. The first five days of the leave, each calendar year, will be paid. For more information on this new leave, click here.
Overlapping Entitlements
Note that the same circumstances may entitle an employee to more than one of the leaves of absence described above. For example, an employee may take a Crime-Related Child Death Disappearance Leave where the child is ultimately found but requires care and support from the employee immediately following that leave. The employee could be eligible to take a Family Medical Leave to provide that care and support. The employee would have the right to both leaves without reduction as a result of having taken the earlier leave.
Please click here to visit Fasken’s dedicated Bill 148 resource webpage.
