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Three new statutorily protected leaves of absence to protect job security for employees who need to be absent to deal with illness in the family or due to child death or disappearance have been added to the Employment Standards Act.These new leave protections are effective October 29, 2014.

The three new job-protected leaves added to the list are:

  1. Family Caregiver Leave: up to eight weeks of unpaid, job-protected leave for employees to provide care or support to a family member with a serious medical condition.
  2. Critically Ill Child Care Leave: up to 37 weeks of unpaid, job-protected leave to provide care to a critically ill child.
  3. Crime-Related Child Death or Disappearance Leave: up to 52 weeks of unpaid, job-protected leave for parents of a missing child and up to 104 weeks of unpaid, job-protected leave for parents of a child who has died as a result of a crime

The list of ‘family’ members for whom the employee can seek leave to support for the 8-week leave period is quite broad and includes:

  • 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 grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee's spouse;
  • the spouse of a child of the employee;
  • the employee's brother or sister;
  • a relative of the employee who is dependent on the employee for care or assistance; and
  • any individual prescribed as a family member under the regulations.

In both the family caregiver leave and the critically ill child care leaves, employees must obtain doctor’s certificates.

To qualify for the family caregiver leave, the employee must obtain a doctor’s certificate stating the family member has a ‘serious medical condition.’ The Act, however, does not define the term or provide examples.

To be eligible for the Critically Ill Child Care Leave of up to 37 weeks, an employee must have at least six consecutive months’ prior service with the employer. There is no minimum service requirement imposed on employees to be entitled for the shorter 8-week leave.

Whether a child (someone under 18 years of age) is ’critically ill’, meaning the child’s life is at risk, is determined by a qualified medical practitioner. The practitioner provides a certificate that confirms the child is critically ill and requires the support of the parent and further states the time frame that parental support is required.

General Leave of Absence Protections Also Apply

Employees who take Family Caregiver Leave would also receive the benefit of other general leave protections already contained in the ESA, including reinstatement rights, continued service/seniority accrual and wage protection.

These new job-protected leaves are in addition to the seven existing leaves of absence already permitted under the ESA in Ontario, namely Pregnancy Leave, Parental Leave, Family Medical Leave, Organ Donor Leave, Personal Emergency Leave, Emergency Leave, Declared Emergencies, and Reservist Leave.

Practical Consequences

It may take some time before employers review and amend, as necessary, employee handbooks, benefit plans, employment contracts and collective agreements to ensure compliance with these additional three statutory job-protected leaves.

Whether employees can afford to take unpaid leave remains to be seen. Employment insurance benefits may be available in the case were a parent is caring for a critically ill child. There is also a federal grant provision available to parents in the case of child death due to crime. However, employment insurance benefits fall under federal not provincial law. Different eligibility rules and criteria apply. Employees will have to consult with Service Canada to determine whether they are eligible for any employment insurance benefits.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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