This post was contributed by John Cassell, Associate, Norton Rose Fulbright Canada LLP (Calgary)
On May 27, 2013, Bill 203: Employment Standards (Compassionate Care Leave) Amendment Act, 2012 received royal assent which, once proclaimed into force, will amend the Alberta Employment Standards Code, R.S.A. 2000 c.E-9 to require non-federally regulated employers in Alberta to allow employees to take up to eight weeks unpaid leave to care for a terminally ill family member.
Once Bill 203 is proclaimed into force, the changes will serve to bring Alberta in line with other provincial and territorial employment standards legislation, along with the Canada Labour Code, R.S.C 1985, c L-2, all of which provide some form of compassionate care leave for employees.
Who qualifies to take Compassionate Care Leave?
Once an employee has been employed with the same employer for 52 consecutive weeks, that employee is entitled to take unpaid compassionate care leave (up to eight weeks) to provide care or support to a seriously-ill “Family Member”.
Family Member is defined (relatively narrowly) to include:
- a spouse or common-law partner of the employee,
- a child of the employee or a child of the employee’s spouse or common-law partner,
- the parent of the employee or a spouse or common-law partner of the parent, and
- any other person designated by the regulations.
Of note, the definition of Family Member does not include siblings, grandparents, stepchildren or the spouse of a child of the employee (daughter or son in law), although it is possible that such individuals may be designated as a Family Member in the regulations at a later date.
Additionally, only employees who are the primary caregiver of the seriously ill family member for that family are entitled to compassionate care leave, suggesting that only one person per family is entitled to compassionate care leave.
Prior to commencing compassionate care leave, an employee is required to provide a copy of a medical certificate from a physician stating that the family member has a serious medical condition with a significant risk of death within 26 weeks from either the date of the certificate or the commencement of leave if the leave commenced prior to providing the certificate. The employee must provide the certificate prior to commencing leave, unless an emergency exists which prevents the employee from doing so.
The employee must provide two weeks written notice prior to commencing leave, unless an emergency prevents the employee from doing so, and absent an agreement between the employer and employee, the employee is required to provide two weeks written notice of the date the employee intends to resume work.
Protection of Employment Position during Leave
The key component of compassionate care leave (similar to other forms of unpaid leave) is that during the period of leave, the employer may not lay-off or terminate the employee’s employment and must reinstate the employee to the position he or she occupied prior to commencing leave or alternatively provide the employee with alternate work of a comparable nature at same compensation and benefits as received prior to taking leave.
An employer who suspends operations while an employee is on compassionate care is required to reinstate that employee to his or former position or a comparable position where the employer recommences operations at a later date.
Employment Insurance (“EI”) Compassionate Care Benefits
An employee on compassionate care leave will continue to be entitled to apply for EI Compassionate Care Benefits through the Federal Government’s EI Program as previous. However, employers and employees alike should be aware that the eligibility requirements to receive EI Compassionate Care Benefits differ from the incoming compassionate care leave provisions discussed above.
Takeaways for Employers
Employers in Alberta who will be subject to the incoming changes discussed above are advised to review and update all relevant policies and procedures so that such changes may be immediately implemented once Bill 203 is proclaimed in force.
Practically speaking, employers must also be prepared to accommodate employee requests for unpaid compassionate care leave and to make the appropriate internal arrangements to cover the absent employee’s duties and responsibilities until their return.
Additionally, employers may wish to inform employees about to take compassionate care leave of the availability of EI Compassionate Care Benefits and to assist employees in the application for such benefits where possible.