On March 2, 2009, the Ontario government introduced Bill 154,
"An Act to amend the Employment Standards Act,2000 (ESA) in respect of organ donor leave."
If passed, the Bill would amend the ESA to create Section
49.2, which would provide employees who undergo organ donation
surgery with up to 13 weeks of unpaid leave from their
The proposed leave of absence for organ donation is part of the
government's "organ donor strategy" to increase the
number of "living donors" and decrease the waiting time
for an organ transplant.
The proposed new section contains many provisions that are
similar to other leave of absence provisions in the ESA.
The following is a brief summary of the proposed Bill:
Questions and Answers on Bill 154
Who Qualifies for Organ Donor
Employees under the ESA qualify for the leave if they
have been employed for at least 13 weeks with the employer and have
undergone surgery for the purpose of organ donation.
Employees are entitled to the leave only if they have donated
the following "organs":
Any "organ" or "tissue" prescribed by
When Does the Leave Begin?
An employee may begin his/her leave on the day that he/she
undergoes the organ donation surgery or on an earlier day specified
in a medical certificate.
Is the Leave Without Pay?
How Long Does the Leave Last?
The leave is for 13 weeks. However, it may be extended for a
further period of up to 13 weeks if a physician issues a
certificate stating that the employee is unable to perform his/her
duties because of the organ donation.
The maximum leave period may be varied by regulation.
Does an Employee Have to Give Us Notice of the
Yes. An employee must give you two weeks' written notice
before beginning or extending the leave of absence. However, if the
employee must begin or extend the leave before being able to advise
you, the employee can provide you with written notice "as soon
as possible" after beginning or extending the leave.
If an employee wishes to end his/her leave earlier than
expected, the employee must provide you with at least two
weeks' written notice before the day he/she wishes to end the
Can We Request Documentation Evidencing Entitlement
to the Leave?
Yes. As with other leave of absence provisions under the
ESA, you may require an employee to provide a medical
certificate confirming that the employee has undergone, or will
undergo, organ donation surgery.
What Happens When the Employee Returns to
As with other leave of absence provisions under the
ESA, you must reinstate an employee to the same position
he/she held prior to the leave. If that position no longer exists,
you must provide the employee with a "comparable"
position (at an equal or greater rate of pay).
What Happens to Employee Benefits During the
The general provisions that apply to other leave of absence
provisions under the ESA would apply to organ donor leave.
Therefore, employees continue to participate in their benefit plans
unless they elect, in writing, not to do so.
How Does Organ Donation Leave Impact Personal
Emergency Leave Days?
An employee's entitlement to organ donation leave is in
addition to any employee entitlement to personal emergency
leave days under Section 50 of the ESA. The days an
employee is on an organ donation leave should not be counted as
personal emergency leave days.
Lessons for Employers
Entitlements under the ESA to leaves of absence
continue to grow. If Bill 154 passes, organ donation leave would be
the fifth leave of absence provision passed by the Ontario
government in approximately five years. (The others are Family
Medical Leave (s. 49.1); Personal Emergency Leave (s. 50);
Emergency Leave, Declared Emergencies (s. 50.1); and Reservist
Leave (s. 50.2).)
With the continued increase in leaves of absence provisions, it
is important to structure your operations and staffing requirements
to ensure minimal disruption in case of an employee leave of
absence. It is also important to review your internal policies
and/or collective agreements to ensure they are consistent with the
ESA leave of absence provisions.
We will continue to monitor the progress of Bill 154 and report
any further developments, including whether the Bill passes. If you
have any questions relating to Bill 154 or other leave of absence
provisions, please contact any member of the Labour and Employment
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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