Employment Standards Act Update: Employees get more time off to care for children starting October 29, 2014

Jul 24, 2014

On April 29, 2014, the Ontario government gave employers six months notice that employees would be entitled to three new family care leaves on October 29, 2014.

The following blog discusses these predominantly child care leaves, and what implications they have for small businesses.

Family Caregiver leave

This leave is different from the emergency caregiver leave which provides for up to 8 weeks leave to care for certain family members if the family member is at serious risk of death within 26 weeks.

The family caregiver leave provides for up to 8 weeks unpaid leave each year, but to care for certain family members with a “serious medical condition” which is not defined. If requested, the employee must, however, provide a certificate from a qualified health practitioner.

An employee is not required to take full weeks off so the leave can be taken over an extended period of time.

Critically Ill Child Care Leave

An employee with six months service will be eligible to take up to 37 weeks unpaid leave to provide care and support for a critically injured child. The employee must provide written notice of the intention to take this leave and must provide a certificate from a qualified health practitioner.

Crime–Related Child Death and Disappearance Leave

Under this leave, an employee is not required to take full weeks off. So, just like the Family Caregiver leave, it can can be taken over an extended period of time.

An employee with six months service is entitled to a full year unpaid leave- 52 weeks- if a child disappears as a result of a crime. An employee who wishes to take this leave must advise his or her employer in writing.

Implications for Small Business Employers (or employers with less than 50 employees)

As of October 29, 2014, most employees working for small businesses in Ontario will be entitled to take up to 8 leaves of absence; namely:

  1. Pregnancy leave
  2. Parental leave
  3. Family medical leave
  4. Organ donor leave
  5. Reservist leave
  6. Family Caregiver Leave
  7. Critically Ill Caregiver Leave
  8. Crime-Related Child Death & Disappearance Leave

I suspect few employees will request organ donor, reservist, or child-related death or disappearance leaves. In our experience, few male employees working for small businesses request parental leaves and we do not believe this trend will change.

Many small businesses have difficulty temporarily replacing employees who are on pregnancy and parental leaves and we believe this scheduling challenge will continue.

The new Family Caregiver Leave and Critically Ill Caregiver Leave may create havoc for some small employers.

Consider an employer with one customer service representative (CSR) who asks to take the first and third weeks off each month. Or a CSR who asks to take Monday and Friday off each week.

In recent years, the courts have been dealing with employee requests for time off work to care for children or parents. For more information on these cases, click here.

We suspect that the new child care leaves under the ESA, and the evolving case law on accommodating employees on the basis of family status will result in new, more onerous scheduling and recruiting challenges for small employers.

For more information on Ontario’s Employment Standards Act, click here.

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers in connection with leave of absence issues. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

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