October 28, 2014
New ESA Leaves Come into Force
Author Hendrik Nieuwland
You pick up the phone and hear this: “I just got a call from my airline. Someone on my plane might have ebola. They've asked me to go into voluntary quarantine at home. Is the company okay with that?” Receiving a call like this is unfortunately a real possibility for human resources professionals these days. Telling the employee "Yes, you can stay home" in these circumstances is not just the prudent, sensible and compassionate choice, it could very well be the employer's legal obligation.
For employees working in Ontario, the Employment Standards Act, 2000 (“ESA”) provides employees with the right to a leave of absence in a number of circumstances. Staying with the ebola phone call example, that employee would be entitled to 10 days off under the Personal Emergency Leave provision of the ESA. If ebola were to spread and the Government declares an emergency requiring potentially exposed citizens to remain in quarantine, that employee would be entitled to a further leave under the Emergency Leave, Declared Emergencies provision of theESA, which would last until the Government declared an end to the quarantine.
If it was instead the employee’s child who was quarantined, and the employee needed to stay home to care for the child, the employee would now be entitled to Family Caregiver Leave or Critically Ill Child Care Leave, which are two of the three new ESA leaves that came into force on October 29, 2014, along with Crime-Related Child Death or Disappearance Leave. This article will provide an overview of these new leaves of absence under the ESA, as well as providing a brief review of the other pre-existing ESA leaves.
The following leaves of absence were available to employees prior to October 29, 2014: Pregnancy Leave, which provides an expectant mother with up to 17 weeks’ leave prior to giving birth; Parental Leave, which gives new parents up to 37 weeks’ leave; Personal Emergency Leave, which as indicated gives employees up to 10 days’ leave annually for a variety of urgent matters; Family Medical Leave, which gives employees up to 8 weeks’ leave if a family member is dying; Organ Donor Leave, which gives employees up to 13 weeks’ leave to recover from organ donation surgery; the aforementioned Emergency Leave, Declared Emergencies, which entitles employees to leaves to fulfill Government-imposed obligations in an emergency; and Reservist Leave, which allows employees who are Canadian Forces reservists to take a leave of absence when called up by the Canadian Forces for war or emergency response. All ESA leaves are unpaid leaves. Employees are separately and independently entitled to each of the types of leave; whether an employee has already taken one of the other ESA leaves has no bearing on the employee’s entitlement to another specific leave.
As of October 29, 2014, three new unpaid leaves of absence were added to the ESA. First, under the new Family Caregiver Leave, an employee is entitled to up to 8 weeks’ annual leave to provide care or support for each of a variety of family members if a doctor, nurse or psychologist issues a medical certificate stating that the family member has a serious medical condition. The employee must advise the employer of the leave in writing, and the employer is entitled to ask for a copy of the medical certificate.
Under the new Critically Ill Child Care Leave, a parent who has been employed by his or her employer for at least 6 consecutive months is entitled to a leave of up to 37 weeks to care for his or her critically ill child who is under the age of 18. A "critical illness" for the purposes of this provision is defined as “a child whose baseline state of health has significantly changed and whose life is at risk as a result of an illness or injury.” This leave may be taken if a doctor, nurse or psychologist provides a medical certificate that states that the child is critically ill and requires care or support for a specified period. This leave ends at the earliest of: the end of the week in which the critically ill child passes away, the last day of the period specified in the medical certificate (or a revised certificate as the case may be), or when all 37 weeks of leave have been taken. If the child does not die but remains critically ill for longer than one year, the employee may take another leave of up to 37 weeks if he or she obtains another medical certificate. Where both parents take leaves under this provision, the combined total of the leaves taken by both parents cannot exceed 37 weeks, even if they have different employers. The employee must advise the employer of the leave in writing, and must also provide the employer with a “written plan” indicating the weeks in which he or she will be taking the leave. The employer is entitled to ask for a copy of the medical certificate.
Finally, under the new Crime-Related Child Death or Disappearance Leave, a parent who has been employed for at least 6 consecutive months is entitled to a leave of up to one year if his or her child under the age of 18 disappears, or two years if the child dies, and it is likely that the disappearance or death was the result of a crime. An employee is not entitled to this leave if the employee is charged with the crime or if it is likely that the child was a party to the crime. Where both parents take leaves under this provision, the parents must share the one-year leave (in the case of disappearance) or two-year leave (in the case of death), even if they have different employers. An employee must advise his or her employer of the leave in writing, and must also provide the employer with a “written plan” indicating the weeks in which he or she will be taking the leave. The employer is entitled to ask for reasonable evidence of the employee’s entitlement to the leave. Evidence that is reasonable is contextual and may take many forms, such as a letter from the police stating that the child’s death/disappearance was, or was likely to have been, the result of a crime, or a media report about the death/disappearance that quotes the police as saying that it was, or was likely to have been, the result of a crime.
In some cases, it will be clear that the child’s death or disappearance was the result of a crime, such as where there was an eyewitness to a drunk driver causing an accident that resulted in a child’s death, or where there was an eyewitness to a child’s abduction. In such cases, the employer must allow a leave in accordance with this provision if the employee requests it. However, in other cases, it will not be so clear that a death/disappearance was the result of a crime. For example, if a child dies as a result of a fall from height where appropriate safety measures were not fully implemented, it would be unclear whether the death was a result of crime or was merely an accident. In such a case, if an employee asks for a leave, the employer should consider initially granting the leave pending a police investigation, but if no charges are laid as a result of the investigation, the employer would be within its rights to demand that the employee return to work. Similarly, if a child disappears and there are no witnesses, an employer should consider initially granting a leave if one is requested, then should follow up a few weeks later to ask for evidence to demonstrate that it was likely that the disappearance was the result of a crime. If the employee is unable to provide such evidence, the employer would be within its rights to demand that the employee return to work.
Employers should ensure that their policies are updated to reflect the availability of these three new ESA leaves of absence. The new leaves are complex, as the descriptions above make clear. While the Ministry of Labour has published some guidelines, a number of important questions remain, such as what forms of evidence will be deemed reasonable to establish entitlement to the leaves, in particular the Crime-Related Child Death or Disappearance Leave. In these early days it is therefore prudent to seek advice from legal counsel when you first apply these new leaves of absence in your workplace.