The federal legislature recently amended the Canada Labour Code and the Employment Insurance Act to provide new benefits to employees working in federally regulated industries whose children are critically ill or have died or disappeared as the probable result of a crime.
Bill C-44, An Act to amend the Canada Labour Code and the Employment Insurance Act and to make consequential amendments to the Income Tax Act (short title: Helping Families in Need Act) was introduced into the House of Commons in September 20, 2012, and received Royal Assent on December 14, 2012. The Helping Families in Need Act amends the Canada Labour Code (“the Code”) in a few important ways:
1. Where an employee’s child is critically ill, the employee will be permitted to take up to 52 weeks of unpaid leave. During this time the employee will be entitled to apply for up to 35 weeks of Employment Insurance benefits;
2. Where an employee’s child disappears as the probable result of a crime, the parent will be entitled to up to 52 weeks of unpaid leave. The employee will be entitled to apply for up to 35 weeks of Employment Insurance benefits (capped at $350.00 per week);
3. Where an employee’s child has been killed as the probable result of a crime, the employee will be entitled to up to 104 weeks of unpaid leave. The employee will be entitled to apply for up to 35 weeks of Employment Insurance benefits (capped at $350.00 per week) during this leave of absence;
4. Parental leave may be extended due to the death, disappearance or critical illness of the child.
All of these leaves are job-protected and employers are prohibited from taking any disciplinary or punitive action against employees who seek to make use of these leaves of absences.
Employers are permitted to require that employees support their request for an extended leave by providing a medical certificate verifying the critical illness of their child. Although not specifically stated by the Code, it can also be presumed that the employer will be entitled to request reasonable evidence supporting the fact that a child has been killed or has disappeared and that the incident is the probable result of a criminal act. “Child” is defined as children who are under 18 years of age and includes adopted children.
The Code also provides that the leave will end if it becomes probable that the child’s death or disappearance was not, in fact, the result of a crime. It should be noted that only one leave will be granted, even where several children die or disappear as a result of the same incident.
There are certain exclusions from these new benefits. Employees who have less than six months of consecutive employment cannot access these job-protected leaves. Employees who are charged with a criminal offence in connection with their child’s death or disappearance also do not qualify for a job-protected leave under the Code. Further, employees whose children disappear or are killed in the course of committing a crime are not entitled to take a leave under this provision of the Code.
It should also be noted that Canada Labour Code applies only to employees working in industries that fall under federal jurisdiction but that everyone working in Canada is governed by the Employment Insurance Act. As a result, employees working in provincially regulated sectors will be able to access the new benefits under the Employment Insurance Act but will not be able to make use of the job-protected leave under the Canada Labour Code.
Even where employees do not meet the Code’s criteria for job-protected leaves or where the employer is provincially regulated, employers should always carefully consider requests for leave of absences to attend to family obligations in light of the prohibition against discrimination on the grounds of family status under the Canadian Human Rights Act, the Ontario Human Rights Code and similar legislation in other provinces. For example, a request for a leave of absence to mourn for a child who was killed in the course of committing a crime may not qualify for job-protection under the Canada Labour Code but, depending on the impact of the death on the parent, could still fall within the duty to accommodate under applicable human rights legislation.
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