Three New Statutory Leaves of Absence are Set to Take Effect in Ontario on October 29, 2014

On April 29, 2014, Bill 21, the Employment Standards Amendment Act (Leaves to Help Families), 2014, was passed and received royal assent in Ontario. This means that, effective October 29, 2014, the list of job-protected leaves of absence under Ontario's Employment Standards Act, 2000 (ESA) will expand to include family caregiver leave, critically ill child care leave and crime-related child death or disappearance leave. These new leaves of absence will be in addition to the existing leaves of absence available to Ontario employees under the ESA, and may be used in conjunction with those existing leaves.

Family Caregiver Leave

Employees who need to care for or support a "family member" who has a "serious medical condition" as certified by a qualified health practitioner will be entitled to take up to eight weeks of unpaid, job-protected leave each calendar year. There is no minimum period of service required before employees become entitled to take this leave of absence.

"Family member" is defined broadly but does not include uncles, aunts, nephews, nieces and cousins. "Serious medical condition" is not defined but can include chronic or episodic conditions.

Employees must notify their employers in writing of their plan to take this leave of absence. Upon an employer's request, an employee must also provide a copy of a qualified health practitioner's certificate confirming that the employee's family member has a serious medical condition.

Critically Ill Child Care Leave

An employee who has been employed by his or her employer for at least six consecutive months will be entitled to take up to 37 weeks of unpaid, job-protected leave to care for or support a "critically ill child" of the employee if a qualified health practitioner issues a medical certificate that: (a) states that the child is critically ill and needs parental care or support; and, (b) outlines the period during which the child needs parental care or support.

"Child" for the purposes of this leave of absence includes a step-child, foster child or child who is under legal guardianship, and who is under 18 years of age.  A "critically ill child" for the purposes of this leave of absence is a child whose baseline state of health has significantly changed and whose life is at risk as a result of an illness or injury. Whether a child meets this definition is to be determined by a qualified health practitioner who is required to provide a medical certificate as described above.

Employees who intend to take this leave must give their employers advance written notice and a written plan that includes the weeks the leave will be taken. Upon an employer's request, an employee must also provide a copy of a qualified health practitioner's certificate qualifying the employee for this leave.

The ESA will also include additional provisions about extending leaves, limitation periods and what happens in the event that more than one child is critically ill.

Crime-Related Child Death or Disappearance Leave

An employee who has been employed by his or her employer for at least six consecutive months will be entitled to take up to 104 weeks of unpaid, job-protected leave following the crime-related death of the employee's child and up to 52 weeks of unpaid, job-protected leave following the crime-related disappearance of the employee's child. Generally, an employee must take this leave in a single period, subject to limited exceptions. Note, however, that if the employee is charged with the crime or where it is probable that the child was a party to the crime, the employee cannot take this leave.

"Child" for the purposes of this leave includes a step-child, foster child or child who is under legal guardianship, and who is under 18 years of age. "Crime" includes any offences under Canada's Criminal Code except for certain prescribed offences.

Employees who intend to take this leave must provide their employers advance written notice and a written plan that includes the weeks the leave will be taken. Upon an employer's request, employees must also provide evidence that they are entitled to take such leave.

Next Steps for Ontario Employers

With less than six months to go before the family caregiver leave, critically ill child care leave and crime-related child death or disappearance leave take effect in Ontario on October 29, 2014, Ontario employers should review and consider how to reflect these new statutory leaves of absence in their workplace policies, handbooks, employment contracts and collective bargaining agreements.

Please feel free to contact us if you need further information.

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