By Robert Brent
In a time when many parents balance both work and family, one thing is clear: a parent shouldn’t be forced to choose between work and his or her child when that child has suffered a serious injury.
Ontario’s employment law recognizes this principle and provides two forms of potential relief to parents under the Employment Standards Act, 2000 (the “ESA”). First, parents may be eligible for up to 10 days of Emergency Leave per year. Second, and in addition to Emergency Leave, the ESA entitles parents to up to 8 weeks of Family Medical Leave in certain circumstances. Both forms of leave are unpaid.
Family Medical Leave came into being under the ESA only last year and seems to be part of a growing recognition of both the rights and needs of working parents in Ontario. Since 1982, discrimination on the basis of “family status” has been prohibited under the province’s Human Rights Code. Recently, the Ontario Human Rights Commission released a discussion paper entitled Human Rights & The Family In Ontario, intended to raise awareness of these rights. The paper suggests that employers may have a duty to accommodate an employee’s short-term needs in the face of an emergency involving a child, but notes there is very little case law to date on this point. In the meantime, employees may rely upon the ESA.
Under the ESA, Emergency Leave is unpaid, job-protected time off work for up to 10 days per calendar year. Some key points:
- To qualify, the employer must regularly employ at least 50 workers.
- Leave may be taken for personal illness, injury or medical emergency or for the death, illness, injury, medical emergency or other urgent matter relating to the employee’s spouse, a parent, child, grandparent or grandchild of the employee or a spouse or same-sex partner; the spouse of a child; a sibling; or a relative who is dependant on the employee for care or assistance.
- An employee is obligated to advise the employer that he or she is taking this leave before it begins, or as soon as possible after.
- The 10 days don’t have to be taken all at once.
- If only part of a day is taken off, that is counted as a full day towards the 10-day total.
- An employer is allowed to ask an employee to provide evidence that he or she is eligible for Emergency Leave, and the employee is required to provide evidence that is reasonable in the circumstances, which may include a doctor’s note, a note from a school or day care facility, or receipts.
- If a contract or collective bargaining agreement provides a greater right of benefit than the Emergency Leave provisions in the ESA, then that agreement will govern any leave.
The ESA also provides for Family Medical Leave. This is unpaid, job-protected time off work for up to 8 weeks in a 26-week period. Some key points:
- This leave may be taken to care and support a family member who has a serious medical condition with a significant risk of dying within a period of 26 weeks. The medical condition and risk of death must be confirmed in a certificate issued by a qualified medical practitioner. The employee is responsible for obtaining and paying the cost (if any) of obtaining the certificate.
- The family member may be the employee’s spouse or same-sex partner, parent, child or child of a spouse or same-sex partner.
- Employees are entitled to this form of leave whether a full-time, part-time, permanent or a contract employee.
- An employer must be notified in writing that an employee will be taking a Family Medical Leave before it begins, or as soon as possible after. The employer is entitled to request a copy of the medical certificate.
- If two of more employees qualify to take leave to care for the same person (i.e. both parents are employed), the 8 weeks must be shared.
- The 8 weeks of leave do not have to be taken consecutively during the 26-week period but do have to be taken in periods of an entire week (with a week being calculated from a Sunday to a Saturday).
Under the ESA, an eligible employee cannot be fired for taking either an Emergency Leave or Family Medical Leave. In addition, an employer can be punished under the ESA if an employee takes or plans to take a leave and is intimidated, suspended, punished or in any way threatened, or the employee’s pay is reduced. If an employee believes that his or her employer is not complying with the ESA, he or she can consult (and make a complaint to) the Employment Standards Branch of Ontario’s Ministry of Labour. For more information, telephone: 1-800-531-5551.
With both forms of leave, an employee continues to earn seniority and credit for length of service while on leave and the employer must continue to pay into most benefit plans (i.e. pension, life and extended health insurance, accidental death and dental plans).
It is important to note that while both forms of leave are unpaid, a parent who is forced to take time off for a Family Medical Leave may be entitled to receive up to six weeks of Compassionate Care Benefits as a form of Employment Insurance from the federal government.
This article is intended to provide a summary of information for parents, concerning the various leaves from work they may be entitled to when a child is injured.