New provisions for family caregiver leave

December 21, 2011 Earl Altman Employee Relations, Employment/Labour Standards, Human Resources

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On December 8, 2011, the Ontario Liberal Government introduced Bill 30, entitled the Family Caregiver Act that builds upon the existing Family Medical Leave (Compassionate Care Leave). This Act intends to create an additional entitlement to a leave of absence from work while the employee’s job is protected. If the Bill is enacted, it will come into force on July 1, 2012.

The proposed Act will provide for an unpaid leave of absence for up to eight weeks to allow an employee to provide care and support to a sick or injured family member. The Act allows the employer to request a certificate from a qualified medical practitioner certifying that the relative has a “serious medical condition”.

A “qualified health practitioner” means a person who is qualified to practise medicine under the laws of the jurisdiction in which care or treatment is provided to the individual described below or, in the prescribed circumstances, a member of a prescribed class of health practitioners.

The scope of the individuals covered include:

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
Any individual prescribed as a family member for the purpose of this section

The employee requesting such leave must advise his employer in writing as soon as practical of his intention to take the leave, preferably before the leave is to start. Obviously, given the nature of the underlying problem, there may be circumstances where a start date can not be adequately predicted, and the Act provides for some flexibility in terms of the timing of the notice to the employer.

Entitlement to family caregiver leave is in addition to any entitlement to family medical leave and personal emergency leave under the Employment Standards Act.

A family medical leave is unpaid, job-protected leave of up to eight weeks in a 26-week period. Family medical leave may be taken to provide care or support to certain family members and people who consider the employee to be like a family member in respect of whom a qualified health practitioner has issued a certificate indicating that he or she has a serious medical condition with a significant risk of death occurring within a period of 26 weeks. The medical condition and risk of death must be confirmed in a certificate issued by a qualified health practitioner. In general, employees can obtain EI compassionate care benefits during this period of leave.

The Statute also provides for a personal emergency leave. This applies to employers who have fifty or more employees, and entitles the employee to 10 unpaid days off each calendar year for personal injury or illness, or emergency, or to deal with the death, illness, injury, or medical emergency of one of the relatives described in the Act.

The general provisions which apply to leaves under the Employment Standards Act would apply to the new entitlements under this Bill. The period of leave will be considered as employment for purposes of determining length of employment and seniority, although will not be considered in determining whether a probationary period has concluded. Once the leave is over, the employee must be put back in the same job as she occupied when the leave started, or, if such a position has been eliminated, in a comparable position. The employee is entitled to be reinstated to the rate of pay that prevailed when the leave commenced.

If the Bill is passed, it will expand to some extent the entitlement of employees to care for sick family members. First of all, Family Caregiver Leave would apply to supporting family members with a serious medical condition rather than the more limited restriction of a serious medical condition with a significant risk of death. In addition, the caregiver leave does not require that the employer have a minimum of fifty employees to apply. Bill 30 also makes it clear that the Family Caregiver Leave is to be given in addition to any entitlement to Family Medical Leave or emergency leave. Employees would be entitled to take the eight weeks of Family Caregiver Leave and then claim a further eight weeks of Family Medical Leave.

Under the current legislation, employees who take Family Medical Leave are eligible to receive employment insurance. It is unclear at the present time whether such entitlement would accrue to those taking Family Caregiver Leave. Ontario is calling on its federal government to extend EI compassionate care benefits to those who take advantage of Family Caregiver Leave, just as they do when Ontarians take Family Medical Leave. We will see if the federal government responds in a positive manner.

Bill 30 represents the sixth time the Liberal Government has enacted an unpaid leave provision under the Employment Standards Act. However, given the government’s current situation, it is unclear whether the legislation will pass in its present form. However, employers must be aware of these increasing entitlements and the resulting impact on their workforce. Employers should also ensure that their Employment Policies are consistent with these new provisions.

We will continue to monitor the progress of Bill 30 and alert our readers if the Bill is enacted into law.

Earl Altman
Garfinkle Biderman LLP