Caring for a critically ill family member can be an emotionally
taxing and stressful experience. Canadian law recognizes the
inherent difficulties in balancing an employee's desire to care
for an ill family member and their obligation to attend work as
required. To this end, the law permits certain employees to
take a protected leave from work during which the employee should
not be terminated provided certain statutory conditions are met.
Section 206.4 of the Canada Labour Code
("CLA") permits federally regulated employees to
take a compassionate care leave for a period of up to 8 weeks to
care for a critically ill family member. The leave is available if
the employee provides a certificate signed by a qualified medical
practitioner stating that the family member has a serious medical
condition with a significant risk of death. Employees with
children that are critically ill may qualify for a leave of up to
37 weeks. During a compassionate care leave or a leave taken
to care for a critically ill child, an employee cannot be
terminated for time away from work.
Section 49 of the Employment Standards Act
("ESA") allows provincially regulated employees
in Ontario to take a Family Medical Leave which may be taken to
care for an ill family member. Under the ESA, an
employee may be entitled to a leave of up to 8 weeks if the
employee provides the employer with a certificate analogous as the
one required under the CLA. Provided that the
employee complies with the statutory requirements to obtain their
leave, an employer may not terminate an employee for time away from
the workplace as a result of caring for a critically ill family
As the law stands, employees are permitted to take a family
illness leave, but only if a family member has a medical condition
with a "significant risk of death". However, it
would appear that at least in Ontario, the fairly stringent
requirement may be relaxed in the very near future.
Bill 21, Employment Standards Amendment Act (Leaves to Help
Families) received its third reading in the Ontario
legislature in December 2013. As it appears to have
multiparty support, it is expected that the bill will be proclaimed
into law in 2014. The amendments that would be caused by this
bill would allow employees to take a leave to care for family
members with chronic or episodic medical conditions rather than
only if there is a significant risk of death.
In addition the statutory protections, an employee is entitled
to equal treatment in the workplace and not to be discriminated
against on the basis of family status. Under the Ontario
Human Rights Code, employers cannot discriminate in hiring,
benefits, work conditions, or termination of employment because an
employee is caring for a family member. An employer has a
positive duty to reasonably accommodate needs related to family
status. Depending on the circumstances, an employer may be
required to provide flexible scheduling, permit leaves of absence
or provide alternative work arrangements to ensure that the family
and work needs of an employee are balanced. Where an employee
feels that they have been terminated or discriminated against as a
result of caring for a critically ill family member, the employee
can file a human rights complaint which may assist the employee to
obtain any of a wide range of remedies including monetary
In most cases, an employee can care for an ill family member
without losing their job. The law provides a range of
statutory protections to employees who struggle with the balance
between caring for an ill family member and fulfilling their work
demands. Both employers and employees should be aware of and
ensure (through legal advice and their actions) that they meet the
requirements placed on them by the employment and human rights laws
when an employee needs to assist an ill family member.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).