Canada: Guide To Bill 148 | ESA: Leaves Of Absence

Last Updated: November 20 2017
Article by David K. Law

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The Ontario Employment Standards Act provides a promise of re-employment to employees absent due to protected forms of leave.

Historically, many employers in Ontario provided compassionate leaves to employees in a wide range of personal situations. Such leaves were particular to employers, employees and their private circumstances.

Many of those cases were converted to legal entitlements under prior legislative reforms. Bill 148 continues that process of expanding the forms and durations of protected leaves afforded to employees. These leaves are the minimum entitlement provided by law; they do not preclude an employer from offering other or greater forms of leave.

The circumstances where protected leaves are available constitute the worst personal situations most people will confront. The effects of protected leaves are of course salutary for employees: they have a range of personal circumstances that they can take time to address, without the demands of attending work or the worry of losing work.

Leaves are a personal entitlement, meaning that at any given time, more than one individual may be taking any of a number of forms of unpaid leave available under the ESA. 

Employers must therefore manage a multiplicity of leaves of varying duration, incurring the loss of experienced employees who can only be replaced on a temporary basis. Public policy appears to be that an employer should be asked to bear the burden of employee leaves, rather than adding to the burdens of the employee.

Care and Support 

A person can take up to 27 weeks' unpaid leave to care for a relative medically certified to be at significant risk of death in the next 52 weeks.

Section 49.1 (2) increases this leave from 8 to 27 weeks and extends the "qualifying period" from 26 to 52 weeks.  Section 49.1(6) says that two employees with the same employer, taking this leave in respect of the same relative, can have combined leave of 27 weeks (up from 8).

Child Death Leave

Where a child dies, an employee (or employees) with at least six months' service can take up to 104 weeks off without pay.

New section 49.5 offers this leave in respect of any parent-child or foster parent relationship. It does not apply where the child's death is believed to have arisen from the child committing a crime. Nor does it apply if the parent is charged with a crime in relation to the death.

Child Disappearance Leave

Where a child disappears, an employee (or employees) with at least six months' service can take up to 104 weeks off without pay.

This new section 49.6 applies in respect of any parent-child or foster parent relationship. It applies where the child's disappearance is believed attributable to a crime. Where the child is found alive, the leave is to terminate within 14 days. It does not apply where the child's death is believed to have arisen from the child committing a crime. Nor does it apply if the parent is charged with a crime in relation to the death.

Personal Emergency Leave

All employees in Ontario are entitled to take up to ten (10) Personal Emergency Leave days in a calendar year. This is available in cases of illness, family member death or illness or other urgent matters involving family. 

Section 50 PEL was previously limited to persons at workplaces of 50 or more employees.

Previously, PEL days were unpaid. Now an employer must pay for the first two PEL days; the remaining 8 are unpaid.

Pregnancy and Parental Leave

Pregnancy leave in cases of miscarriage or still-birth is extended from 6 to 12 weeks after the loss occurs. Where a person takes pregnancy leave, her entitlement to parental leave is extended from 35 to 61 weeks. Persons who did not take pregnancy leave have parental leave extended from 35 to 63 weeks.

These leave changes were added in Committee amendments in August 2017.

Domestic or Sexual Violence Leave

Employees who experience sexual or domestic violence, or the threat of such violence – and employees whose children have suffered such experiences, are entitled to up to 10 days' leave (parallel to PEL) and up to 15 additional weeks of such leave.

This is limited to persons who have at least 13 weeks of employment with the employer.

This leave is unpaid.

Section 50 of the new Bill 148 originally included this as a new ground for standard Personal Emergency Leave, but the entitlement has been segregated and expanded.

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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