Canada: Military Reservist Leave — New Changes to the Employment Standards Act, 2000

In Ontario, approximately 12,000 citizens serve as military reservists in the Canadian Forces. Every year, hundreds are sent abroad to serve in active duty. This number has increased recently because of ongoing Canadian military engagements in Afghanistan. For the men and women who serve as reservists, overseas deployments can be tremendously disruptive, especially with regard to employment status and family obligations. In an attempt to recognize the service and sacrifices made by reservists, and to lessen the burden on them and their families during active duty, the Ontario government amended the Employment Standards Act, 2000 (ESA) on December 3, 2007 to provide job-protected leaves of absence for reservists.

Military Reservist Leave — How Does It Work?

What is the Nature of a Military Reservist Leave?

Like other leaves of absence mandated by the ESA, military reservist leave is an unpaid, job-protected leave.

Who Qualifies for Military Reservist Leave?

Under the amended ESA, an employee who has been employed for at least six consecutive months and who is a reservist in the Canadian Forces is now entitled to take a job-protected, unpaid leave of absence if he or she is deployed to a Canadian Forces operation either overseas or inside Canada (in the event of an emergency, natural disaster or search/rescue operation).

If you have employees who have already taken time off due to a reservist deployment, it is important to note that military reservist leave under the ESA is only available to those employees whose deployment began on or after December 3, 2007.

How Does an Employer Know the Employee is a Reservist and is Being Deployed?

If you are unsure about the veracity of the request for a military reservist leave of absence, you may require the employee to provide reasonable evidence demonstrating that he or she is entitled to the leave. Such evidence must be provided within a reasonable time frame.

How Much Notice Must an Employee Give?

Once the employee is notified of his or her impending deployment, he or she must provide you with "reasonable notice" of the commencement of the leave. He or she must also provide you with "reasonable notice" as to when the deployment will end and when he or she will return to work. Reasonable notice is not defined in the amendments to the ESA and may depend on many factors, including how much notice the employee receives of his or her deployment.

How Long Does the Leave of Absence Last?

The leave of absence must continue for as long as the deployment lasts. Therefore, you may not impose a time limit on the leave, nor may you deem the employee to have been terminated after a certain amount of time.

Once you have received notice of the end of the leave, you may elect to postpone the reservist's reinstatement date by two weeks or until the first payday (whichever is later) in order to make arrangements for the reservist's return to work.

What Happens When the Reservist Employee Returns to Work?

As with other leaves of absence under the ESA, you must reinstate the employee to the same position he or she held prior to the leave. If that position no longer exists, you must provide him or her with a comparable position at an equal or greater rate of pay.

What about Benefits during the Leave of Absence?

Unlike with other leaves of absences protected by the ESA, employees on a military reservist leave of absence are not entitled to participate in benefit plans provided by their employers, regardless of whether the employees want to continue to make contributions to such plans during their absence. However, employees on military reservist leave are entitled to benefits coverage during the postponement period following the end of their leaves of absence.

Lessons for Employers

Because of the sensitive nature of Canadian Forces deployments, many of these leaves will come on short notice, so it is important to be prepared to deal with the affected employee(s).

Regardless of whether you currently have reservists working for your organization, you should review your human resources policies on leaves of absence and revise them to reflect the creation of military reservist leave in Ontario. If you do not have such a policy in place, we recommend you create one so confusion does not result if and when an employee notifies you that he or she is taking a military reservist leave. Collective agreements should be similarly reviewed and revised.

Your benefits policies should also be revised to make clear that an employee on an approved military reservist leave of absence is not entitled to benefits while on leave, except for during the postponement period.

It is important to note that similar legislation currently exists in P.E.I., Nova Scotia, Manitoba and Saskatchewan. Legislation is also pending at the federal level, and other provinces are likely to follow suit. Therefore, if you have employees in other jurisdictions, you should determine what your obligations are across the country.

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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