The Canada Labour Code, which applies only to employees who work under a federal jurisdiction, sets out a variety of leaves that allow employees to meet their family related obligations. In order to be eligible, an employee must complete six months of consecutive employment with the same employer before the leave begins. These leaves are unpaid although employment insurance benefits may be available during all or a portion of the leave. Employees are entitled to return to the same position or a comparable position at the end of the leave.
- Maternity leave: Female employees are entitled to up to 17 weeks of maternity leave.
- Parental leave: Natural and adoptive parents can take to up 37 weeks of parental leave. Female employees can take both maternity and parental leave.
- Critical illness leave: An employee with a critically ill child is permitted to take up to 52 weeks in order to care for the child. Employers can request a medical certificate supporting the leave.
- Compassionate care leave: Employees are also eligible for up to eight (8) weeks of compassionate care leave in order to look after a family member with a serious medical condition where there is a significant risk of death within 26 weeks. The definition of ‘‘family member’’ includes a spouse, children, grandchildren, grandparents and foster children amongst others. Two or more individuals who are caring for the same family member can share the leave (they must both be under federal jurisdiction). Employers can request a medical certificate supporting the leave.
- Leave related to death or disappearance: Leave is provided where an employee’s child disappears or dies as the probable result of a crime. Where the child disappears, a parent is entitled to 52 weeks of leave. Where the child has died, the parent will be allowed 104 weeks of leave.
It is important to note that employers are also required to consider requests for leaves related to parental obligations as part of their obligation under the Canadian Human Rights Act which prohibits discrimination on the basis of family status. Many provinces provide similar protection. Further to the Federal Court’s decision in Johnstone (2013 FC 113), employers are required to accommodate an employee’s ‘‘substantial parental obligation’’. The decision, however, does not define what exactly will constitute a ‘‘substantial parental obligation’’. Nonetheless, employers must consider requests for accommodation on this basis in good faith and engage in a discussion about an employee’s obligations in deciding whether or not accommodation is possible.