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Q&A: Critical illness leave to take care of parent outside of Canada

critical illness leaveIn this conference Q&A, we address whether employees are entitled to take critical illness leave to care for a parent who is not in Canada.

In partnership with Stringer LLP, First Reference Inc. recently hosted the 19th Annual Employment Law Conference on June 12, 2018, where we discussed the latest legal developments including issues surrounding practical strategies for compliance with Bill 148.

We received a large number of questions from conference attendees during the Q&A session. Though we could not answer them all during the conference, the First Reference Blog will be updated weekly (until further notice) to provide further clarity on this year’s hot topics based on the questions we received.

Q:

If the parent is not in Canada, can an employee still use critical illness leave?

A:

In Ontario, critical illness leave is protected under section 49.7 of the Employment Standards Act (ESA), entitling employees to an unpaid leave of up to 37 weeks to provide care for a critically ill child under the age of 18, and up to 17 weeks to provide care or support to a critically ill family member over the age of 18.

In order to be eligible to take critical illness leave, section 49.7 requires that the employee is covered under the ESA, has been employed by his or her employer for at least six consecutive months, and provides a medical certificate stating that the child or adult family member is critically ill and requires support within a specified time frame.

While there are detailed criteria on notice requirements, the length and timing of the leave, medical certification to justify the leave and so on, there are no eligibility criteria stipulating where the family member must reside in order for the employee to be eligible for the leave.

Rather, guidance from the Ministry of Labour on their website states that “the specified family members do not have to live in Ontario in order for the employee to be eligible for critical illness leave.”

As long as an employee meets all the eligibility requirements, the employee is free to take care of a family member who resides outside of Canada, however, it must still be for the time frame stated in the medical certificate and must not be over the 37 weeks allowed in law.

That said, when we look at the Employment Insurance benefit that provides compensation during critical illness leave, the Family Caregiver Benefit for Adults (which allows up to 15 weeks of financial assistance to provide care or support to a critically ill or injured adult), Service Canada states, “if you leave Canada to provide care or support to a person who is critically ill or injured, you may still be eligible to receive these benefits. You must submit an application and supporting documents with the same type of proof that is required for someone living in Canada.”

“The medical certificate for the person who is critically ill or injured should be completed by a medical doctor or nurse practitioner in the country where they are receiving care.”

To learn more about the law and best practices related to critical illness leave and other statutory leaves, consult The Human Resources Advisor, Ontario Edition. If you are not already a subscriber, try a 30-day free trial here.

Please Note: This article is prepared for information purposes only; it is not legal advice. Consult a lawyer before acting on it or to obtain legal advice or a legal opinion.

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Ava Z Moradi, JD

Editor at First Reference
Ava Moradi, JD, received a Juris Doctor (J.D.) at the University of Windsor, Faculty of Law in 2014. She is a writer, researcher and editor in employment and labour law at First Reference. She is one of the content editors for The Human Resources Advisor, Ontario, Western and Atlantic editions and a contributor to First Reference Talks and HRinfodesk.
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