Family Caregiver Leave in Ontario and COVID-19 Leaves of Absence

Family Caregiver Leave Ontario

With the recent uptick 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:

  1. Have a qualified health practitioner issue a medical certificate deeming the person requiring support or care to have a “serious medical condition”; and
  2. 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
  • For employees to supply care or support to family members with “serious medical condition”
  • Unpaid
  • Medical certificate required
  • Must meet requirements of “family member”
  • Taking partial days less than one (1) week will count as one whole week
  • No requirement for an employee to be employed for a specified period to go on leave
Family Medical 49.1 Up to 28 weeks
  • For employees to provide care or support to individuals with “serious medical condition” if there is a significant risk of death occurring in a period of 26 weeks or shorter
  • Unpaid
  • Medical certificate required
  • Must meet requirements of “individual”
Critical Illness 49.4 Up to 37 weeks for a minor; up to 17 weeks for an adult
  • For employees who have been employed for at least six (6) consecutive months
  • To provide care or support to a critically ill minor child who is a family member; or
  • To provide care or support to a critically ill adult who is a family member
  • “Critically ill”: a minor child or adult whose state of health has significantly changed and whose life is at risk resulting from illness or injury
  • Unpaid
  • In both instances, a medical certificate is required
  • Must meet requirements of “family member”
Family Responsibility 50.0.1 Up to two (2) days
  • For employees who have been employed for at least two (2) consecutive weeks
  • To take leave because of the illness, injury, or medical emergency of an individual; or
  • An urgent matter that concerns an individual
  • Must meet requirements of “individual”
  • Unpaid
  • Evidence (such as a medical certificate) may be requested by the employer
Emergency: Declared Emergencies and Infectious Disease Emergencies 50.1 No limit between March 1, 2020 – January 2, 2021
  • Declared emergency: during the Ontario-declared emergency from March 17 – July 24, 2020, employees could take leave if:
  1. They weren’t performing their job duties because of the emergency; or
  2. Other circumstances applied.
  • Infectious disease emergency: reasons related to an infectious disease because
  1. The employee is under medical investigation, supervision, or treatment regarding the disease;
  2. Employee is acting according to an order under the Health Protection and Promotion Act;
  3. Employee is in quarantine or isolation or is subject to control measure;
  4. Employee is under direction of employer;
  5. Employee is providing care or support to individual regarding the infectious disease; or
  6. The employee is directly affected by travel restrictions related to the infectious disease.
  • Other considerations regarding infectious disease emergency between March 1, 2020 – January 2, 2021:
  1. Employees with reduced or eliminated hours due to COVID-19 are deemed on infectious emergency leave
  2. The abovementioned employees are not considered laid off
  3. The abovementioned employees are not considered constructively dismissed
  4. On January 3, 2021 and after, these employees will no longer be deemed on infectious disease emergency leave
  • Unpaid
  • No medical note required

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.

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