On March 15, 2016, Manitoba gave royal assent to
legislation that will provide employees who are victims of
domestic violence with both paid and unpaid leave from work. Titled
The Employment Standards Code Amendment Act (Leave for Victims
of Domestic Violence, Leave for Serious Injury or Illness and
Extension of Compassionate Care Leave) (the "Act"),
the law is the first of its kind in Canada.
The purpose of the Act is to assist victims of domestic violence
in getting medical attention for themselves or their child,
accessing victim services or professional counseling, moving
temporarily or permanently, and obtaining legal or law enforcement
assistance. The paid and unpaid leave provided for in the Act may
only be used by employees for these purposes.
Under the Act, victims are able to take up to five days paid
leave. Additionally, they may also take an unpaid leave of up to 10
days intermittently or in a continuous period, as well as up to 17
weeks in one continuous period. The 10 days could be used as needed
throughout the year for medical or legal appointments, while the 17
weeks could be used to move into a new home or to recover from a
violent incident or relationship.
To be eligible for this leave, the employee must have been
employed for at least 90 days and must be a victim of domestic
abuse as defined in the Manitoba Domestic Violence and Stalking
Act, which includes experiencing threatened or actual bodily
harm, sexual assault, confinement, and psychological or emotional
Employers are entitled to "reasonable verification" of
the necessity of the leave. While there is no guidance in the
legislation as to what might constitute reasonable verification,
proof of Court proceedings or medical notes for the employee or
their children will likely suffice. Employers must maintain
confidentiality in respect of all matters relating to an
Ontario has prepared similar
legislation, which passed second reading in the Legislative
Assembly of Ontario on March 10, 2016 and was referred to Standing
Committee on Justice Policy for further study. If passed, employees
would have access to 10 days of annual paid leave and an
unspecified period of unpaid leave if they or their child
experience domestic or sexual violence. Further, the legislation
also requires employers to reasonably accommodate employees who
have been threatened with domestic abuse or who have experienced
such abuse with modified hours of work or an alternate
Employers in Manitoba may face issues with the collection of
evidence for domestic abuse leave. Employees who require the leave
are unlikely to want to share such personal information.
Additionally, this sort of personal information is of the most
sensitive nature, as it combines medical evidence with
personal/relationship information. We hope that the government may
provide further guidelines as to the scope of evidence employers
may collect from employees.
Although the Manitoba and Ontario laws only affect employers and
employees in those provinces, it appears there is a general social
trend towards supporting legislative pressure on employers to allow
leave for victims of domestic abuse. As such, it is possible that
other provinces may soon follow suit.
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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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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