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Proposed domestic violence leave of absence in Newfoundland and Labrador would take effect January 1, 2019

Several provinces have created or are beginning to add a statutory domestic violence leave of absence to their employment standards legislation, including Ontario, Saskatchewan, Manitoba, Prince Edward Island, Nova Scotia and New Brunswick. In Newfoundland and Labrador Bill 32 amends the Labour Standards Act to establish such a leave.

domestic violence leaveOn October 30, 2018, Bill 32, An Act to Amend the Labour Standards Act, received first reading in the Newfoundland and Labrador legislature. Subsequently, it passed through second reading and the Committee without any amendments, and received third reading on November 15, 2018. At this point, it has been distributed in the House.

The goal of Bill 32 is to amend the Labour Standards Act to establish a category of leave for employees where an employee or a person to whom an employee is a parent or caregiver has been subjected to family violence.

Understanding domestic violence

According to the most recent Statistics Canada document, Family violence in Canada: A statistical profile, 2016, in 2016, 26 percent of all victims of violent crime had been victimized by a family member. Also, women and girls made up about 52 percent of violent crime victims, and 67 percent of family violence victims were female.

Physical assault was the most common type of offence that was involved in incidents of family violence (73 percent). In fact, 79 percent of male victims and 70 percent of female victims had experienced physical assault.

Of all the victims of intimate partner violence reported in 2016, 79 percent were women. In fact, intimate partner violence was the leading type of violence experienced by women in 2016. It was more common for female victims to experience intimate partner violence by their current spouses or partners (35 percent identified a current dating partner and 32 percent identified a current spouse), compared to former spouses or partners (20 percent identified a former dating partner and 12 percent identified a former spouse).

Police-reported data confirms that crimes including harassment/stalking, threats of physical violence directed at the victim, and actual physical violence often occurred together; in 2016, 29 percent of police-reported criminal harassment incidents involved another crime.

While 27 percent of victims were stalked by a stranger, on the whole, most victims were stalked by someone they knew other than an intimate partner (49 percent) and current or former intimate partners (21 percent).

Additionally, women represented about 74 percent of all intimate partner stalking victims, and it was more common for there to be physical violence against a stalking victim when the stalker was an intimate partner (34 percent) compared to being stalked by someone else they knew (13 percent). Also, women were four times more likely than men to be victims of intimate partner homicide.

In 2016, child abuse victims aged 17 years and younger represented about 16 percent of violent crime, and 30 percent were victims of family violence perpetrated by a parent, a sibling, a spouse or another type of family member.

It is also important to note that in a largely forgotten group, seniors aged 65 years and older, 34 percent were victimized by a family member such as their child, spouse, sibling or another type of family member. Senior victims of police‑reported family violence were most likely to have been victimized by their child (32 percent), spouse (27 percent) or another type of family member other than their child, spouse or sibling (29 percent).

What does Bill 32 say?

The purpose of Bill 32 is to create a leave of absence for employees who have been employed with the same employer for a continuous period of 30 days consisting of three days’ paid leave and seven days’ unpaid leave in a year where the employee or a person to whom the employee is a parent or caregiver has been directly or indirectly subjected to, a victim of, impacted or seriously affected by family violence or has witnessed family violence. Any unused portion of the period of leave expires at the end of the year in which it was granted.

Under Bill 32, “family violence” means an act or omission described in section 3 of the Family Violence Protection Act.

The violence referred to in Bill 32 is violence experienced by: a person who is or has been a family member; a person who is or has been in an intimate relationship or who is living or has lived with the employee; a person who is the parent of a child with the employee; a person who is or has been a caregiver to the employee; or any other person who is a member of a class of persons prescribed in the regulations.

Under Bill 32, a “parent” includes: a parent of a child; the spouse of a parent of a child or a person living with a parent of a child; a person with whom a child has been placed for the purpose of adoption; a foster parent of a child; or a person who has the care or custody of a child, and is considered to be like a close relative, whether or not that person is related to the child by blood or adoption.

The reasons for taking the leave can include:

  • to allow the employee or a person to whom the employee is a parent or caregiver to seek and receive medical attention, counselling or other services from a health professional for physical, psychological or emotional harm or an injury or disability that is a result of the family violence;
  • to allow the employee or a person to whom the employee is a parent or caregiver to seek and receive services provided by a transition house, a policing agency, the government of Canada, the government of a province or municipality or any organization that provides services to persons who have been directly or indirectly subjected to, a victim of, impacted or seriously affected by family violence or have witnessed family violence;
  • to allow the employee to move his or her place of residence;
  • to allow the employee or a person to whom the employee is a parent or caregiver to seek and receive legal services or assistance including services or assistance with respect to his or her participation in or the enforcement of a legal proceeding relating to or as a result of the family violence; or
  • to allow for a purpose that is prescribed in the regulations.

The employee who wishes to take the family violence leave must provide written notice to the employer as soon as possible unless there is a valid reason for not providing it. This notice must indicate the length of the leave the employee intends to take.

Most importantly for employers, Bill 32 clearly states that employers are not allowed to dismiss an employee or give notice of dismissal to an employee because an employee intends to take, applies for or takes this family violence leave of absence.

In the case where an employee is dismissed contrary to this rule, the employer must prove that the reason for dismissal was unrelated to the family violence leave.

Additionally, employers have an obligation to reinstate an employee at the end of the leave of absence on terms and conditions that are not less beneficial than those that subsisted before the leave of absence began.

If passed, Bill 32 would come into force on January 1, 2019.

What does this mean for employers?

Several provinces have created or are beginning to add a statutory domestic violence leave of absence to their employment standards legislation, including Ontario, Saskatchewan, Manitoba, Prince Edward Island, Nova Scotia and New Brunswick.

Newfoundland and Labrador employers must take note that this family violence leave of absence is on its way to becoming law and will likely take effect in the very near future. There are important requirements to meet when providing the domestic violence leave of absence to employees. The main requirements that employers must remember involve not disciplining the employee who wishes to take the family violence leave, and reinstating the employee once the leave of absence has ended.

Not only are employers recommended to become familiar with these rules, but they are also recommended to proactively develop policies and procedures for dealing with employee requests for the leave and training the employees accordingly.

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more
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