Canada: Employee Leaves Of Absence

Last Updated: May 16 2013
Article by Christina Wallis

Type of Leave

Section of Act

Time Off Permitted

Conditions for Eligibility

PREGNANCY LEAVE

ss. 46-47
ss. 51-53

Up to 17 weeks unpaid.

  • Pregnant
  • Full-time, part-time, permanent or contract employees.
  • Must be hired at least 13 weeks prior to the date baby is expected to be born (the "Due Date") as determined by a medical practitioner, does not have to be the baby's actual date of birth.
  • Does not have to be actively working, merely hired 13 weeks prior to Due Date.

Notice

  • Employee must provide at least 2 weeks' written notice to employer prior to beginning her leave and if employer requests, must provide a certificate from a medical practitioner stating the Due Date.
  • Employee may begin leave earlier than the date she originally provided for if she provides the employer with new written notice at least 2 weeks prior to her new leave date.
  • If she does not provide advanced notice that does not mean the employee does not qualify for leave as the reason for lack of notice might be due to complications caused by the pregnancy.
  • Not providing notice does not automatically disqualify the employee for leave.

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

  • It is up to the employee to decide when she will begin her leave and not up to the employer.
  • Pregnancy leave must be taken all at once.

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.

  • Applies to:
  • A birth parent,
  • An adoptive parent,
  • A person who is in a relationship with a parent of the child and who plans to treat the child as his or her own, including same-sex couples.
    • Must be employed for at least 13 weeks prior to commencement of leave (do not have to be actively working in the 13 weeks prior).
  • Applies to full-time, part-time, permanent or contract employees.

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

  • To provide care for family members who have serious medical conditions with significant risk of death occurring within a period of 26 weeks.
  • Employees are entitled to family medical leave to care for the following family members:

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.

  • A qualified health practitioner must issue a certificate stating that the employee's family member has a serious condition and there is a significant risk of death within 26 weeks or less.

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

  • If there are two or more employees taking leave in respect of the same family member, their combined
  • Leave time shall not exceed 8 weeks. 
  • Leave must be taken in a period of an entire week.
  • Employees taking family medical leave might be entitled up to 6 weeks of employment insurance benefits (compassionate care benefits) under the federal Employment Insurance Act.

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.

  • Employees working for employers with 50 or more employees.
  • For any of the following reasons:

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.

  • A family member in this section is defined as:

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.

  • Personal illness, injury, disability or medical emergency which a medical practitioner deems the employee incapable of working.

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:

  1. Pension plans;
  2. Life insurance plans;
  3. Accidental death plans;
  4. Extended health plans; and
  5. 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.

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Authors
Christina Wallis
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