The HR Space is edited by Lyne Duhaime, Karen M.
Sargeant and Brian P. Smeenk
Canadian employees are entitled to all sorts of leaves
– maternity leaves, parental leaves, sick leaves,
emergency leaves, leave for disappearance of a minor child, and the
list goes on. Now Ontario appears likely to create another new
category of leave of absence for Ontario employees –
Family Caregiver Leave. Bill 30 (PDF), the Family Caregiver Leave
Act (Employment Standards Amendment), 2012, would amend the
Ontario Employment Standards Act, 2000 ("ESA")
by adding Family Caregiver Leave. If Bill 30 becomes law, it will
come into force on July 1, 2012.
Family Caregiver Leave
Bill 30 is designed to allow an employee to take up to 8
weeks' unpaid leave of absence to care for or support an
individual who suffers from a serious medical condition. The Bill
contains a wide definition of an 'individual' in need of
support or care, and includes:
the employee's spouse;
a parent, step-parent or foster parent of the employee or the
a child, step-child or foster child of the employee or the
a grandparent, step-grandparent, grandchild or step-grandchild
of the employee or the employee's 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 prescribed as a family member under the
An employee would be permitted to take up to 8 weeks' leave
of absence every year for each individual listed
above. Further, Family Caregiver Leave would be in addition to the
right to take Family Medical Leave (up to 8 weeks to provide care
and support to certain family members with serious medical
conditions and significant risk of death) and Personal Emergency
Leave (up to 10 days for personal and certain family illnesses or
General Leave of Absence Protections Also Apply
Employees who take Family Caregiver Leave would also receive the
benefit of other general leave protections already contained in the
ESA, including reinstatement rights, continued service/seniority
accrual and wage protection.
Take Away for Employers
If Bill 30 is enacted, the Family Caregiver Leave will be added
to the seven existing leaves of absence already permitted under the
ESA in Ontario, namely Pregnancy Leave, Parental Leave, Family
Medical Leave, Organ Donor Leave, Personal Emergency Leave,
Emergency Leave, Declared Emergencies, and Reservist Leave. While
the range of leaves of absence, as well as the names, scope and
duration vary from province to province, in some cases
significantly, other provinces such as Quebec and British Columbia
offer family responsibility leaves of varied scope and duration. If
the Federal Government agreed to extend employment insurance
benefits to cover Family Caregiver Leaves, other provinces could
quickly follow suit.
Employers should be thinking about the need to plan for and
accommodate potentially lengthy absences by reviewing staffing
plans and policies. Employers should also review existing policies,
employee handbooks, benefit plans, employment contracts and
collective agreements in order to ensure consistency and identify
any new costs or potential adverse consequences.
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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