Edited by Jennifer M. Fantini and Naomi E. Calla

The Ontario government is moving forward with plans to introduce a new category of leave for employees called "family caregiver leave". Premier Dalton McGuinty first announced his intention to create such a leave in August 2011, prior to his re-election. He followed up on December 8, 2011 by introducing Bill 30, the Family Caregiver Leave Act (Employment Standards Amendment ), 2011 ("Bill 30"). The details of Bill 30 are described below.

BASIC ENTITLEMENT

If passed, Bill 30 would amend the Ontario Employment Standards Act, 2000 ("ESA") to permit employees to take an unpaid leave of absence of up to eight (8) weeks to provide care or support to specified family members with a serious medical condition. The entitlement would apply in all workplaces covered by the ESA, regardless of how many employees the employer has.

SPECIFIED FAMILY MEMBERS

Employees would not be entitled to family caregiver leave in respect of any relative. The list of relatives in respect of whom the leave can be taken is limited to:

  • the employee's spouse;
  • parent, step-parent or foster parent of the employee or his/her spouse;
  • a child, step-child or foster child of the employee or his/her spouse;
  • a grandparent, step-grandparent, grandchild or step-grandchild of the employee or his/her spouse;
  • the spouse of a child of the employee;
  • the employee's brother or sister;
  • a relative of the employee who is dependent on the employee for care or assistance; and
  • any individual who may be prescribed under the regulations pursuant to the ESA.

DURATION OF THE LEAVE

Employees are eligible for up to eight (8) weeks of family caregiver leave, for each specified family member, in each calendar year.

CONDITIONS

The following conditions would also apply to employees seeking to take family caregiver leave:

  • Employees must use the leave "to provide care or support" to a specified family members with "serious medical condition". The term "serious medical condition" is not defined in the legislation, but perhaps the Ministry of Labour will offer some guidance in its ESA Policy and Interpretation Manual, if Bill 30 is passed.
  • The employer may request a certificate from a qualified health practitioner stating that the specified family member has a "serious medical condition", which the employee must provide "as soon as possible";
  • Family caregiver leave can only be taken in periods of full weeks;
  • The employee must inform the employer, in writing, before beginning the family caregiver leave, that he/he will be doing so. If the employee is unable to do so, he/she must inform the employer as soon as possible thereafter.

RIGHTS DURING LEAVE

Employees on family caregiver leave would enjoy the same protections that employees on other types of leave under the ESA do. For example, employees may continue to participate in the employer's benefit plans unless they elect in writing not to do so. In addition, employees will have a right to be reinstated to the position they most recently held with the employer, if it still exists, or to a comparable position, if it does not (unless the person's employment has been terminated for reasons solely unrelated to the leave).

OTHER STATUTORY LEAVES

The right to take family caregiver leave would be in addition to all of the other statutory leaves that an employee may take, such as pregnancy leave, parental leave, personal emergency leave, declared emergency leave, family medical leave, reservist leave, and organ donor leave. Time spent on one kind of leave is not counted as time spent on another type of leave. So, theoretically, an employee could take eight (8) weeks of family medical leave, plus eight (8) weeks of caregiver leave, plus ten (10) days of personal emergency leave.

EMPLOYMENT INSURANCE

It remains to be seen whether the federal government will offer employment insurance benefits to employees who take family caregiver leave. The Ontario government has expressed an intention to press the federal government to do so, should Bill 30 pass. The federal government currently offers compassionate care benefits to employees who take time off work to care for family members who are gravely ill with a significant risk of dying within 26 weeks. These compassionate care benefits are available for a maximum of six (6) weeks.

COMMENTARY

Family caregiver leave would become the eighth category of job-protected, unpaid leave in the ESA, if Bill 30 passes.

Provided Bill 30 passes, it is slated to come into force on July 2012. We will continue to monitor the progress of Bill 30 and keep readers informed of whether and when it becomes law.

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