Proposed Changes to Leaves of Absence in Ontario

This post was contributed by Regina Martyn, Associate, Norton Rose Fulbright Canada LLP (Toronto)

Employers should be aware of the possibility of new statutory job-protected leaves of absence in Ontario.  Bill 21, known as the “Employment Standards Amendment Act” (Leaves to Help Families), is in the Second Reading and proposes 3 new unpaid leaves for Ontario employees:

• Family Caregiver Leave
• Critically Ill Childcare Leave and
• Crime-related Child Death and Disappearance Leave

These new leaves would be added to the seven existing leaves of absence permitted under Ontario’s Employment Standards Act, 2000, including Pregnancy Leave, Parental Leave, Family Medical Leave, Organ Donor Leave, Personal Emergency Leave, Emergency Leave, Declared Emergencies, and Reservist Leave.

Interestingly, Bill 21 follows on the heels of last year’s Bill 30, which also proposed a Family Caregiver Leave, but was never passed by the Legislature. Bill 21’s Third Reading has not yet occurred and only time will tell if it is passed into law, but there certainly seems to be momentum to strengthen protected leaves for families in Ontario, and some form of Bill 21 seems likely to pass.

Family Caregiver Leave

The proposed Family Caregiver Leave has been drafted broadly.  It would entitle employees up to 8 weeks’ unpaid leave to care for or support an “individual” who suffers from a “serious medical condition”.

The entitlement requires a certificate from a “qualified health practitioner” (i.e., a physician) and notice in writing by the employee to the employer.  The wide range of “individual” varies from:

• an employee’s spouse;
• the parent, step-parent or foster parent of the employee or the employee’s spouse;
• child, step-child or foster child of the employee or employee’s spouse;
• grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse;
• the spouse of a child of the employee;
• an employee’s brother or sister;
• a relative of the employee who is dependent on the employee for care; and
• any individual prescribed as a family member for the purpose of this section.

This proposed Family Caregiver Leave is in addition to any entitlement to the existing Family Medical Leave under s. 49.1 of the ESA, Personal Emergency Leave under s. 50 of the ESA, as well as the proposed Critically Ill Childcare Leave, and Crime-related Child Death and Disappearance Leave.

Critically Ill Childcare Leave

The Critically Ill Childcare Leave entitles employees who have been employed for a least 6 consecutive months, up to 37 weeks’ unpaid leave to care for his or her critically ill child, and also requires a certificate from a “qualified health practitioner”.

Crime-Related Child Death and Disappearance Leave

The Crime-related Child Death and Disappearance Leave entitles employees who have been employed for at least 6 consecutive months, up to 104 weeks’ unpaid leave when a child has died as a result of a crime, and up to 52 weeks’ unpaid leave in the case of a child’s disappearance.

Employers Takeaway

Employers should begin thinking about how these three new proposed leaves might affect their costs and staffing needs.  If Bill 21 is passed, Ontario employers need to comply.  Employers should consider reviewing their existing policies and plans, employee handbooks, employment agreements and collective agreements to identify the costs and required changes for compliance.

Stay tuned for further updates and/or information on public hearings or opportunities to provide input.