Sick leave and Pregnancy/Parental leave are the more commonly known protected leaves for employees. However, there are several other leaves that much less known and often employees and employers alike do not understand the requirements and rights with respect to the same.
Some of these leaves include but are not limited to:
Bereavement leave; family responsibility leave; family caregiver leave; family medical leave; critical illness leave; and crime-related child disappearance leave.
The purpose of this article is to provide information on the Family Medical Leave (FML) including the requirements, obligations and rights during the leave. This leave is codified in the Employment Standards Act, 200 (“ESA”) section 49.1(2) of Part XIV:
An employee is entitled to a leave of absence without pay of up to 28 weeks to provide care or support to an individual described in subsection (3) if a qualified health practitioner issues a certificate stating that the individual has a serious medical condition with a significant risk of death occurring within a period of 26 weeks or such shorter period as may be prescribed. 2017, c. 22, Sched. 1, s. 34
It is important to note that employees may also be entitled to a family caregiver leave or critical illness leave for similar situations. To learn more about the aforementioned leaves, visit the Government of Ontario website.
All employees covered under the Employment Standards Act, 2000 (“ESA”) are entitled to a family medical leave. There are no requirements to be employed for a particular length of time or classification of employment.
The FML is an unpaid, job-protected leave of up to 28 weeks in a 52-week period. The leave is for time off work for eligible employees to provide care or support to certain family members whom a health practitioner has deemed has a serious medical condition(s) with a significant risk of death occurring within a period of 26 weeks. Care or support includes but is not limited to providing psychological or emotional support directly providing care for the family member.
Employees opting to take a FML may also be entitled to 26 weeks of employment insurance (“EI”) benefits, referred to a “compassionate care benefits”. The right to take time off work is not the same as the right to payment under EI, as EI has its own set of requirements.
An employee must inform the employer in writing that they will be taking a family medical leave of absence. If they are required to start the leave before notifying the employer, they must due so as soon as possible, in writing, after starting the leave.
The employee does not have to have the medical certificate before they start the leave, however in order to receive the job protection, a certificate must eventually be obtained. Once the employer requests the certificate, the employee has an obligation to provide the copy as soon as possible. The certificate must name the family member and state that they have a serious medical condition with a significant risk of death occurring within a specific 26-week period. There is no requirement to specify what the medical condition is.
As noted, employers have an obligation to permit employees, in these circumstances to take the time off as indicated. The employee should not be penalized in any way and should be granted the leave without judgement and fear of repercussions. An employer cannot threaten, fire or penalize in any other way. Employers do not have an obligation to pay wages when an employee takes a leave of absence.
Knowing these types of leaves exist helps employees and employers understand their requirements under similar circumstances. However, further issues may arise once the employee attempts to return.
During the leave, employees are entitled to participate in benefit plans and continue premiums unless they agree to the contrary in writing. Employees also continue to earn credit towards the length of service and seniority during the leave and upon their return are entitled to the same job the employee had before the leave began or a comparable job, if the old job no longer exists. In addition, the employee should be provided with the same pay or a higher wage, if they were eligible for an increase during their leave.
However, employers are permitted to dismiss an employee for legitimate reasons, unrelated to the leave. This causes confusion and could create additional liability for the employer. As termination can be viewed as a violation of the ESA.
Further, it can be viewed as discrimination on the basis of family status which has attracted significant damages being awarded against employers. For instance, Hicks v. Human Resources and Skills Development Canada, an employee who was discriminated against on the basis of family status was awarded $20,000.00 by the Ontario Human Rights Tribunal.
Aside from a job protected leave, there is always a duty on the employer to accommodate an employee who may be caring for a sick family member to the point of undue hardship even after the ESA job-protected leave elapses.
Employers should exercise extreme caution when contemplating terminating an employee on protected leave.
Employees need to be cognizant of their obligations and requirements when commencing and returning from a protected leave to ensure they comply as necessary and to ensure their rights are protected.
It is best practice, for both employees and employers to seek legal advice to provide clarity on their rights and obligations.
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