With the increase in COVID-19 cases, employees are once again forced to consider how they will care for loved ones if someone becomes ill. In March of this year, the Ontario government announced special leaves of absence for employees in response to COVID-19, for example, for employees providing care to a person for a reason related to COVID-19.
What many employees do not know is in addition to these announced statutory leaves in response to COVID-19, other statutory leaves exist under employment standards legislation in Ontario via the Employment Standards Act, 2000 (ESA). All leaves provide protection to employees, so they can spend a temporary period away from work and later return to their positions without being disciplined for workplace absence.
Family Caregiver Leave is one such leave under the ESA that may apply when employees have to take time off to care for their family members.
Am I Eligible For Family Caregiver Leave?
Family Caregiver Leave is available to employees who need to provide care or support to family members who have a “serious medical condition”. Family Caregiver Leave is unpaid and allows employees an up to eight-week leave of absence.
To meet the criteria for this leave, an employee must do the following:
- Have a qualified health practitioner issue a medical certificate deeming the person requiring support or care to have a “serious medical condition”; and
- Ensure the specified family members for whom the caregiver cares or supports is limited to the following list:
- The employee’s spouse;
- A parent, step-parent, or foster parent of the employee or employee’s spouse;
- A child, step-child, or foster child of the employee or the employee’s spouse;
- A grandparent or step-grandparent of the employee or the employee’s spouse;
- A grandchild or step-grandchild of the employee or the employee’s spouse;
- A spouse of a child of the employee;
- A brother or sister of the employee; or
- A relative of the employee who is dependent on the employee for care or assistance.
How Does Family Caregiver Leave Compare to Other Leaves?
Family Caregiver Leave has similar features to other leaves, so understanding the most appropriate leave may be a challenge for both employees and employers alike.
The following chart compares Family Caregiver Leave with other leaves:
|Statutory Leave Entitlements under the ESA|
|Leave||ESA Section||Length of Leave||Pertinent Details|
|Family Caregiver||49.3||Up to eight (8) weeks||
|Family Medical||49.1||Up to 28 weeks||
|Critical Illness||49.4||Up to 37 weeks for a minor; up to 17 weeks for an adult||
|Family Responsibility||50.0.1||Up to two (2) days||
|Emergency: Declared Emergencies and Infectious Disease Emergencies||50.1||No limit between March 1, 2020 – January 2, 2021||
Inform Your Employer
While each leave has different notice requirements to employers, Family Caregiver Leave requires that employees inform their employers in advance and in writing. If the employee does not intend on taking the leave all at once, they should explain this clearly to their employer.
If an employee cannot tell the employer in advance, they may do so as soon as possible after beginning the leave.
Written notice can simply mean an email or letter drafted to the employer informing the employee will be taking leave along with pertinent dates.
Because Family Caregiver Leave is an employment standard set out in the ESA, employers cannot refuse employees or attempt to contract out of it, for example, by disallowing it through the employee’s employment contract.
Monkhouse Law specializes in employment law. Are you in a situation where you need help navigating this area, or have you lost your job? It is important to get good legal advice. We offer free 30-minute phone consultations.