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
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
a child, step-child or foster child of the employee or his/her
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
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
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.
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)
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.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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