Canada: Compassionate Care Leave and Benefits

This article originally appeared in the August 20, 2004 issue of The Lawyers Weekly.

Recently, a number of Canadian jurisdictions passed compassionate care leave legislation, which provides for up to eight (8) weeks of unpaid, job-protected leave within a 26-week period. These jurisdictions include the federal government, Manitoba, New Brunswick, Nova Scotia, Ontario, Prince Edward Island, Quebec, Saskatchewan, and Nunavut. The compassionate care leave may be taken to provide care and support to a specified family member for whom a qualified health practitioner has issued a certificate indicating that the family member has a serious medical condition and there is a significant risk of death occurring within a period of 26 weeks.

Essentially, the legislation implements the changes to the Employment Insurance Act (the "EI Act") and the Regulations, which allows for up to six (6) weeks of compassionate care EI benefits for employees to provide care and support for terminally ill family members. As with other EI Act benefits, employees must serve a two-week unpaid waiting period before the employee can receive EI Act benefits.

Employees can receive leave to care for the following family members:

• The employee’s spouse;
• A parent, step-parent or foster parent of the employee;
• A child, step-child or foster child of the employee or the employee’s spouse; and
• Any individual prescribed as a family member for the purposes of this section.

A "qualified health practitioner" is defined as a person who is qualified to practice medicine under the laws of the jurisdiction in which care or treatment of the family member is being provided. In Ontario, for instance, only medical doctors can issue a certificate. In some jurisdiction another medical practitioner, such as a nurse practitioner, is acceptable if the gravely ill family member is outside Canada; in a location where treatment by a medical doctor is limited or not accessible; and a medical doctor has authorized the other medical practitioner to treat the ill family member.

Also relevant is the definition of "care and support" under the EI Regulations, which means:

• providing psychological or emotional support;
• arranging for care by a third party; or
• directly providing or participating in the care.

This will depend on the jurisdiction. In Ontario for instance, all employees, whether full-time or part-time, permanent or contract, who are covered by the Employment Standards Act, 2000 are entitled to the leave. There is no requirement that an employee be employed for a particular length of time. On the other hand, Manitoba requires thirty (30) days service with the current employer; while Nova Scotia and Quebec require three (3) months service.

That being said, although an employee could be entitled to the leave based on the applicable employment legislation, the employee must meet two requirements in order to receive EI compassionate care benefits.

First, the employee must have at least 600 hours of insurable employment within the qualifying period. The qualifying period is the shorter of (a) the 52 week period immediately before the start date of the employee’s claim; or (b) the period since the start of a previous EI claim, if that claim started during the 52 week period.

Second, in order to be eligible, the employee must obtain medical proof of the family member’s condition. The employee must provide a medical certificate confirming that the ill family member needs care or support and is at significant risk of death within twenty-six (26) weeks. A special medical certificate called a "medical certificate for employment insurance compassionate care benefits" must be completed and signed by a medical doctor or other medical practitioner authorized to treat the gravely ill family member.

The maximum of six (6) week compassionate care benefits is payable within the twenty-six (26) week period that starts with the earliest of:

1. The week the doctor signs the medical certificate; or
2. The week the doctor examines the gravely ill family member; or
3. The week the family member became gravely ill, if the doctor can determine that date (for example, the date of the test results).

The benefit ends on the earliest of the following: after the six (6) weeks of compassionate care benefits have been paid; when the gravely ill family member dies or no longer requires care or support; or the twenty-six (26) week benefit period has expired. Benefits are paid to the end of the week.

An employer is entitled to ask an employee for a copy of the certificate of the qualified health practitioner to provide proof that he or she is eligible for a compassionate care leave. The employee is required to provide that certificate as soon as possible after the employer’s request. Respecting costs, the employee is responsible for obtaining and paying the costs (if any) of obtaining the certificate.

An employee must advise the employer in writing that he or she will be taking the leave of absence. If an employee has to begin the leave before advising the employer, he or she must inform the employer in writing as soon as possible after beginning it.

An employee could commence the leave before obtaining the medical certificate, however, if the employee could not subsequently produce the certificate and/or if the leave were not completed within the 26-week period, the employee would not have had a right to the leave and the employer would not be obligated to provide any of the protections afforded to employees on such a leave.

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.