In Ontario, bereavement leave allows employees to take up to two days of unpaid leave from work each calendar year upon the death of certain family members. These family members include:
- A spouse;
- A parent, including a foster parent;
- A child, including a foster child;
- A grandparent or grandchild;
- A son- or daughter-in-law;
- A sibling; or,
- A relative who is dependent on the employee.
Bereavement leave in Ontario is outlined in section 50.0.2(1) of the Employment Standards Act, 2000 and is a minimum standard that employers must provide no matter what.
If the death does not relate to any of the above family members, an employee will not be entitled under the ESA to bereavement leave. Notably, bereavement leave is not available after the death of an aunt, unephew or niece.
An employee must have been working for at least two weeks to be eligible for bereavement leave Ontario.
An Employee is Entitled to Only Two Days of Bereavement Leave
Unfortunately, employees in Ontario are entitled to a very limited number of days of bereavement leave. If more than one of the listed family members dies in a single year, the employee is not entitled to additional days of leave. It is two days of leave per year, not two days of leave per death. However, it must be remembered that the ESA provides minimum standards, meaning two days is the minimum number of bereavement days available in a year, not the maximum.
It is possible for an employment contract to provide for a greater number of days than required under the ESA. It is even possible for the employment contract to provide for paid leave, whereas the ESA provides only unpaid bereavement leave. Employees should review their employment contracts to confirm how many days they are entitled to. Even if the employment contract is silent on bereavement leave, it is possible that a sympathetic employer will simply grant the employee the extra time off they need.
Notice of Bereavement Leave
An employee is required to give their employer notice before taking bereavement leave. If this is not possible, the employee must inform the employer as soon as possible. However, failure to do so does not mean the employee forfeits their right to take the leave.
Employees are not required to notify their employer in writing before taking bereavement leave. It is acceptable to simply inform the employer verbally, for example, over the phone.
An Employer Can Ask for Proof
Although it may seem in poor taste, the Employment Standards Act gives employers the right to require an employee to “provide evidence reasonable in the circumstances” that they are entitled to the leave (i.e., that one of the listed family members had died). Such evidence could come in various forms: a death certificate, an obituary, a notification from a funeral home, or even an appointment with an estate lawyer.
What is “reasonable” will vary from case to case. The courts have not yet had any reason to define this, as there has been no litigation over this issue. It would be terrible for any business’s public image to be known for denying a grieving employee time off after the death of a family member. The cost of allowing an employee two days off work is nothing compared to the cost of upsetting your employee and irreparably damaging your company’s reputation.
Ontario Federal Employees Entitled to More Bereavement Leave
While the ESA provides Ontario employees with two days of bereavement leave, not all employees in Ontario are covered by the ESA. For instance, federal employees working in Ontario are instead covered by the Canada Labour Code. Under the Canada Labour Code, an employee is entitled to a leave of absence of up to 10 days in the event of a death of a family member. This is significantly more than what most employees in Ontario are entitled to.
Furthermore, the Canada Labour Code provides for paid bereavement leave. An employee who has worked for three consecutive months is entitled to be paid for the first 3 days of their 10 day bereavement leave.
Employees working in Ontario may be covered by the Canada Labour Code if they work in any of the following industries: air transportation (including airports), banking, Crown corporations, First Nations band councils, postal and courier services, radio and television broadcasting, railways, and telecommunications (including telephone and Internet). See more: Federally Regulated Employees in Canada
This was written by Shane Burton-Stoner, an Employment Lawyer at Monkhouse Law. Monkhouse Law is an employment law firm located in Toronto with a focus on workers’ issues. Give us a call at 416-907-9249 or fill out this quick form. We offer a free 30-minute phone consultation.