Taking leave for family emergencies

August 7, 2012 5:28 pm Views: 2762
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Lisa C. Cabel is a partner with Borden Ladner Gervais and can be reached at lcabel@blg.com

Family emergencies can impose urgent and important responsibilities on us at any time. When you have to take time off work to help a relative or deal with a personal emergency, how does the law protect your job and your benefits and what obligations do you have to your employer?

The Ontario Employment Standards Act, 2000 (“the ESA”) creates six categories of “job-protected” leave: pregnancy leave, parental leave, personal emergency leave, declared emergency leave, family medical leave, and reservist leave. In certain circumstances, an employee can take personal emergency leave or family medical leave to deal with certain urgent or serious matters affecting themselves or their relatives.

The ESA entitles most employees to ten days of personal emergency leave each year.  An employee does not have to take these ten days consecutively and taking a partial day off will be considered as a full day of leave.

The ESA also gives employees the right to take up to eight weeks per year of family medical leave to care for a terminally ill relative. Employees do not have to take these eight weeks consecutively, but taking a partial week off on family medical leave will counts as a full week of leave.

Unused personal emergency leave days and unused family medical leave weeks do not carry over into subsequent years.

Qualifying For Personal Emergency or Family Medical Leave?

Most employees are entitled to personal emergency leave in cases of injury, illness, and certain other emergencies. According to the Ministry of Labour, all surgeries performed for medical reasons count as “illness” for the purposes of taking this type of leave. An employee can also take personal emergency leave if a relative dies, falls ill, or experiences an emergency or urgent matter. For example, if your child’s school calls and asks you to pick her up, or your babysitter calls in sick and there is nobody else available to care of your child.

However, not all employees are entitled to personal emergency leave. If the employer has fewer than 50 employees in Ontario, then there is no obligation to provide personal emergency leave. Furthermore, a health practitioner under Schedule 1 of the Registered Health Professions Act, 1991, cannot take personal emergency leave where this would be misconduct or a dereliction of their professional duties.  It is best to review your employer’s policy or talk to your human resources representative to understand more about whether personal emergency leave is available to you.

All employees are entitled to take family medical leave to care for a terminally ill relative. To be considered “terminally ill” for the purposes of leave entitlement, the relative must have a serious medical condition with a significant risk of dying within 26 weeks. If the relative dies while the employee is on leave, the leave period is over at the end of that week. If the relative has not died within 26 weeks, the employee may be entitled to another period of family medical leave.

It is important to remember that the ESA sets minimum standards for terms and conditions of employment. If the employment contract or collective agreement provides greater leave entitlements than the ESA does, then the rights and obligations regarding leave will be determined by the contract or collective agreement. Where a contract provides lesser entitlements, the ESA will apply.

Employee Obligations

Where possible, an employee should endeavour to give their employer notice that they intend to commence a leave of absence.  However, in an urgent and unexpected situation giving notice may not be possible.  Accordingly, in these cases, the employee should advise their manager or other appropriate person that they have taken leave as soon as possible.

Employers are entitled to receive reasonable documentary evidence of an emergency, however, they are not entitled to know the particular diagnosis or other details of the employee’s condition. Where an employee commences a personal emergency leave to care for a relative, the employer may request the name of the relative, the relationship to the employee and confirmation that the employee’s absence is required due to the relative’s illness, injury, or emergency.  Where an employee commences a family medical leave to care for a terminally ill relative, the employer can require a medical certificate confirming that the relative has a serious medical condition with a significant risk of dying within 26 weeks.

Job-Protected Leave of Absence

Where the leave of absence (include personal emergency leave and family medical leave) is a “job-protected leave”, the ESA works to protect some of the employee’s rights and benefits. In particular, the employee has as a right of reinstatement, in other words they are entitled to return to work after the leave period ends and the employer cannot terminate or discipline an employee for taking leave. Even where another individual has been hired to replace the employee, that replacement can only be for a temporary basis until the employee returns from the leave. Where the particular position no longer exists, an employer is required to make every effort to reinstate the employee to a comparable position. Furthermore, unless the employee is a probationary employee, seniority, vacation time entitlements, and credit for service and length of employment continue to accrue during job-protected leave, just as if the employee had been at work.

The ESA does not require employers to pay an employee’s salary during the job-protected leave. However, where the employer pays part of the premium for certain benefits, such as pension benefits, life insurance, extended health and dental coverage, it must continue to pay its share of these premiums during the leave period.  Employee’s are also entitled to 4% vacation pay for any wages earned during the leave period; however, if the employee does not earn any wages during leave, then no vacation pay is due (because 4% of $0 is $0).

Article By:

Lisa C. Cabel

Lisa C. Cabel is an associate in the Toronto office of Borden Ladner Gervais LLP and a member of the Labour and Employment Practice Group. Lisa can be reached at 416-367-6217 or lcabel@blg.com

1 Comment

  • My daughter works for subway, had to take off time for surgery (Tonsils) Was ask for a doctors not. Note was obtained from doctor for a fee of $20.00 and delivered to the employer. The day after she was to go back to work the letter was rejected by her employer.
    How can some one that works for a company in Ontario that employs less than 50 people go on doctors medical level and not loose their job?

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