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New leaves coming under Ontario’s Employment Standards Act

On April 29, 2014, Bill 21, the Employment Standards Amendments Act (Leaves to Help Families), 2014, received royal assent and will come into force six months after assent, on October 29, 2014.

The new legislation creates three new job-protected leaves:

1. Family caregiver leave:

sick-familyUp to eight weeks of unpaid, job-protected leave for employees to provide care or support to a family member with a serious medical condition. Serious medical conditions can be episodic or chronic. The employee will be required to provide a doctor’s note certifying that the family member has a serious medical condition in order to qualify.

The eight week leave is in addition to other specified leave entitlements under the Employment Standards Act, such as the family medical leave under section 49.1 and personal emergency leave under section 50.

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 employment insurance compassionate care benefits during a family medical 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. This will be clarified further at a later date.

2. Critically ill child care leave:

Up to 37 weeks of unpaid, job-protected leave to provide care to a critically ill child. The child in question must be under 18 years of age and the child’s parent must have been employed for at least six consecutive months with the employer in order to qualify. The employee will be required to provide a doctor’s note certifying that the child is critically ill in order to qualify.

sick-childThe critically ill child care leave is in addition to other specified leave entitlements under the Employment Standards Act, as discussed above.

On December 14, 2012, the federal Act Helping Families in Need Act (formerly Bill C-44) received royal assent and is now law. This Act amended the Employment Insurance Act to allow an eligible person to claim benefits where that person is providing support or caring for a critically ill child.

This new EI benefit provides income support for up to 35 weeks to eligible parents caring for a child (under 18 years of age) with a critical illness or injury. As with other EI special benefits, employees need to have worked a minimum of 600 insurable hours in the last year. Self-employed workers who have opted into the EI program need to have earned a certain minimum amount of income in the previous calendar year to be eligible for the benefit. All applicants also need to submit a medical certificate signed by a Canadian-certified pediatrician or medical specialist. This provision came into force June 2013.

3. Crime-related child death or disappearance leave:

crime-childUp 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 child in question must be under 18 years of age and the child’s parent must have been employed for at least six consecutive months with the employer in order to qualify.

An employee who wishes to take one of the above leaves must advise his or her employer in writing that he or she will be doing so and must provide the employer with a written plan that indicates the weeks in which he or she will take the leave. If an employee must begin a leave before advising the employer, the employee must advise the employer of the leave in writing as soon as possible after beginning it and must provide the employer with a written plan that indicates the weeks in which he or she will take the leave.

An employer may require an employee who takes a leave to provide evidence reasonable in the circumstances of the employee’s entitlement to the leave.

Beginning on January 1, 2013, a new Federal Income Support grant was made available for parents of murdered or missing children. This grant provides $350 per week for up to 35 weeks to parents of murdered or missing children (less than 18 years of age) whose death or disappearance is the result of a suspected Criminal Code offence. To receive this taxable grant, affected parents need to have earned a minimal level of income in the previous calendar year and take leave from their employment.

What employers should do?

Under the law, 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 above or, in the prescribed circumstances, a member of a prescribed class of health practitioners.

Employers must continue to pay into most benefit plans (i.e., pension, life and extended health insurance, accidental death and dental plans).

Employees continue to earn seniority and credit for length of service and length of employment while on any of these leaves.

The ESA also has additional provisions about notice to an employer, extending leaves, limitation periods and what happens in the event that more than one child is critically ill, among other things.

Ontario employers should start reviewing and considering how to implement these new statutory leaves of absence in their workplace policies and collective bargaining agreements before October 29.

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Yosie Saint-Cyr

Managing Editor at First Reference Inc.
Yosie Saint-Cyr, LL.B., is a trained lawyer called to the Quebec bar in 1988 and is still a member in good standing. She practiced business, employment and labour law until 1999. For over 15 years, Yosie has been the Managing Editor of the following publications, Human Resources Advisor, Human Resources PolicyPro, HRinfodesk and Accessibility Standards PolicyPro from First Reference. Yosie is one of Canada’s best known and most respected HR authors, with an extensive background in employment and labour across the country. Read more
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