Type of Leave |
Section of Act |
Time Off Permitted |
Conditions for Eligibility |
PREGNANCY LEAVE |
ss. 46-47 |
Up to 17 weeks unpaid. |
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Notice
Commencement Date – Employee may commence leave no earlier than 17 weeks before Due Date and no later than the baby's Due Date, or if the baby is born prior to the Due Date, the day the baby is born. Return Date – Employees are not required to notify the employer when they will be returning to work and the employer cannot require the employee to return earlier. If the employer is not notified of the return date, the employer is to assume that the employee will take the full 17 weeks. If the employee decides to come back before or after the scheduled end date (as long as the end date is within the statutory limit), the employee is to provide the employer with 4 weeks' written notice. Resignation - Employee who decides to resign during or at the end of the leave, must provide the employer with written notice 4 weeks prior to the resignation date. Other
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Type of Leave |
Section of Act |
Time Off Permitted |
Conditions for Eligibility |
PARENTAL LEAVE |
ss. 48-49 ss. 51-53 |
(1) Up to 35 weeks of unpaid time off for birth mothers who took pregnancy leave (for a total permitted leave up to 52 unpaid weeks off). (2) Up to 37 weeks of unpaid time off for new parents who are not birth mothers, and birth mothers who did not take pregnancy leave. |
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Notice – Employee must provide the employer with at least 2 weeks' written notice before beginning parental leave and the employee can change the date by providing the employer with 2 weeks' notice prior to the commencement of the leave. Commencement Date - For birth mothers, parental leave ordinarily must begin as soon as the pregnancy leave ends subject to limited exceptions. Parents who are not the birth mothers must start their leave no later than 52 weeks after the date their baby was born or the date their child first came into their care. Return Date - Employee may return to work earlier by providing the employer with written notice 4 weeks prior to returning. Employee does not have to provide his or her employer with a return date. If no date is provided, the employer is to assume the full 35 or 37 weeks will be taken. Resignation - An employee who decides to resign before the end or at the end of the leave must provide the employer with written notice 4 weeks prior to the resignation date. Other - Leave must be taken all at once and does not have to be for the full 35 or 37 weeks. |
Type of Leave |
Section of Act |
Time Off Permitted |
Conditions for Eligibility |
FAMILY MEDICAL LEAVE |
s. 49.1 ss. 51-53 |
Up to 8 weeks of unpaid leave |
1. Employee's spouse; 2. A parent, step-parent or foster parent of the employee; and 3. A child, step-child or foster child of the employee or the employee's spouse.
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Commencement - The leave can begin no earlier than the first day of the week in which the 26 week period begins. Return Date - The leave must end the earlier of the death of the family member, the last day of the 8 week period, or the last day of the 26 week period. Other
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Type of Leave |
Section of Act |
Time Off Permitted |
Conditions for Eligibility |
PERSONAL EMERGENCY LEAVE |
ss. 50-53 |
Up to 10 unpaid days off per calendar year. |
1. A personal illness, injury or medical emergency; 2. The death, illness, injury or medical emergency of a family member; and 3. An urgent matter that concerns a family members.
1. The employee' spouse; 2. A parent, step-parent or foster parent of the employee of the employee's spouse; 3. A child, step-child or foster child of the employee or the employee's spouse; 4. A grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee's spouse; 5. A spouse of a child of the employee; 6. The employee's brother or sister; or 7. A relative of the employee who is dependent on the employee for care or assistance. |
Documentation Required - Employer may request the employee to provide proof that he or she is entitled to take the leave such as a death certificate, a note from a medical professional, a note from a daycare provider, school or other care facility. Receipts could also be provided as proof of an emergency, e.g. an invoice from a plumber who was called to deal with a flooded basement. |
Type of Leave |
Section of Act |
Time Off Permitted |
Conditions for Eligibility |
DISABILITY LEAVE |
Common Law applies |
Could last up to 1 to 2 years or more before the employment contract is considered frustrated and at an end. |
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The Employment Standards Act, 2000 ("ESA") - The ESA does not address disability leave in excess of the 10 days permitted leave under the Personal Emergency Leave section but short-term or long-term disability is covered under the common law. Documentation Required - An employee can take unpaid leave under the common law but the employee does have to cooperate with the employer. Upon request, the employee is to provide a medical note which states that the employee has a medical condition and when the employee is expected to return to work. The employer however is not entitled to information regarding the medical condition, i.e. the employer is entitled to the prognoses but not the diagnosis. Employee Return to Work - Upon return, the employee should provide the employer with a medical note stating any restrictions which could hinder the employee's ability to perform the job. The employer must accommodate within those restrictions. Benefits - Depending on the employer's benefit coverage, the employee can apply for disability insurance either under his or her employment disability plan or under Employment Insurance. Other - If an employee takes a disability leave, the employer cannot consider the job terminated. The employer is required to hold the job for the employee for a period of time which could exceed one or two years or more. |
GENERAL PROVISIONS CONCERNING LEAVES UNDER THE ESA
During leave employees continue to earn credit for length of employment, length of service, and seniority. They are also entitled to continue participating in the following employee benefit plans:
- Pension plans;
- Life insurance plans;
- Accidental death plans;
- Extended health plans; and
- Dental plans.
If applicable, employees must continue to pay their share of the premiums in order to continue to participate in the benefit plans.
Payment of Wages and Employment Insurance for Pregnancy Leave and Parental Leave
Some employers choose to pay a portion of their employees' salary while they are away on pregnancy and/or parental leave but it is not mandated by the law. The Employment Insurance Act provides eligible employees with benefits that may be payable to the employee on leave. Since eligible employees are paid under the Employment Insurance Act, the employer would have to issue the employee a Record of Employment so that the employee can apply for Employment Insurance benefits.
Employee's Return
Upon an employee's return, the employer is required to reinstate the employee to the position he or she held prior to the leave, or a comparable position if that position no longer exists. The employee is also entitled to be paid at least as much as he or she was paid prior to leave, subject to wage increases for the position.
Dismissing an Employee on Leave
If an employee is dismissed for reasons which are totally unrelated to the employee taking the leave, the employer does not have to reinstate the employee. However, as dismissing an employee on disability, maternity or parental leave could result in a human rights complaint, it is recommend to obtain legal advice prior to the dismissal.
OTHER TYPES OF LEAVES
Other types of leaves include Organ Donor Leave (S. 49.2), Emergency Leave due to Declared Emergencies (S. 50.1), and Reservist Leave (S.50.2). More information on employee leaves is available on the Ministry of Labour website or by contacting one of our employment lawyers.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.