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New and Updated Employee Leaves of Absence in Ontario

By January 29, 2018November 5th, 2019Employment Law

The new changes to employment law in Ontario (as of January 1, 2018) introduced and revised the leaves of absence regime for employees who need time off.  Some are paid, but most are unpaid.

Read more to find out exactly what has changed.

Critical Illness Leave

In 2017, the federal government introduced a new adult caregiving benefit of up to 15 weeks in a 52- week period (along with the extension of parental EI benefits). The purpose of that new benefit is to provide some financial support for those individuals who are unable to work as a result of having to provide significant care to an adult family member recovering from a critical illness or injury.

In Ontario, Bill 148 has replaced the former “Critically Ill Child Care Leave” (which entitled an employee to leave of up to 37 weeks within a 52-week period to provide care to a critically ill child) with the broader “Critical Illness Leave”. Critical Illness Leave now includes both the previously existing leave to care for a minor child of up to 37 weeks in a 52-week period, and a leave of up to 17 weeks in a 52-week period for an employee to provide care to a critically ill adult family member.

Family Medical Leave

Family medical leave, which allows an employee to take an unpaid leave in order to provide care or support to family members suffering from a serious medical condition with a significant risk of death within 26 weeks, will be extended from a leave of up to 8 weeks within a 26-week period, to a leave of up to 28 weeks within a 52-week period.

Pregnancy Leave

As of January 1, 2018, pregnancy leave for employees who suffer a still-birth or miscarriage will be extended from 6 weeks to 12 weeks after the pregnancy loss occurs, but only where the pregnancy leave began on or after January 1, 2018. Additionally, the definition of a “legally qualified medical practitioner” (being the person who can provide a certificate setting out an employee’s due date, or who can certify that the employee is unable to perform her duties because of complications during the pregnancy) now includes midwifes and nurses with extended certificates of registration.

Parental Leave

In 2017 the federal government extended parental leave benefits for parents who can now choose to stretch out their Employment Insurance (EI) benefits over 18 months rather than 12 months. Now, Bill 148 amends the parental leave provisions of Ontario’s law to match this change by increasing an employee’s entitlement to parental leave from 35 weeks to 61 weeks (for employees who take pregnancy leave) and from 37 weeks to 63 weeks (for employees who do not take pregnancy leave).

Remember: an employee must give 4 weeks of notice of the end of their parental leave. If an employee chooses not to return to work after a parental leave, they must give at least 4 weeks of notice of their resignation.

Crime-Related Child Disappearance Leave and Child Death Leave

Bill 148 divides a former leave of absence into two separate leaves of absence. The Crime-Related Child Disappearance Leave will provide an employee with up to 104 weeks of unpaid leave where a child disappears and it is probable that the disappearance was the result of a crime. A separate unpaid Child Death Leave of 104 weeks, will be available in circumstances where a child of an employee dies, for any reason.

Domestic or Sexual Violence Leave

Bill 148 creates a new unpaid leave entitlement for employees who experience, or whose child experiences, domestic or sexual violence, or the threat of sexual or domestic violence. The employee may take up to 10 days of leave and may take up to 15 weeks of leave per calendar year; but importantly, the first five days of the leave must be paid.

As well, the leave of absence in this situation must be taken for one of the following purposes:

  • to seek medical attention for a physical/psychological injury or disability caused by the
    domestic or sexual violence;
  • to obtain services from a victim services organization;
  • to obtain psychological or other professional counseling;
  • to relocate temporarily or permanently;
  • to seek legal or law enforcement assistance; or
  • any other purpose as set out in the law in the future.

Personal Emergency Leave

See my entire blog post about this important leave of absence – where employees now receive two paid sick days.

Other Existing Leaves of Absence

Don’t forget: the new changes to the law did not affect the other available leaves of absence to employees, including Organ Donor Leave, Family Caregiver Leave, Emergency Leave (under a special law called the Emergency Management and Civil Protection Act), and Reservist Leave. Each leave is different and has different criteria, and so each should be assessed on their own.

Each leave of absence is independent of any other; and each absence can only count for one type of ESA leave, even if the reason for the absence could be covered under more than one type of ESA leave.

The new / amended leaves of absence, like the old ones, are guaranteed to employees. Which means that employers must keep the employee’s job open while they are on leave. Leaves of absence are considered “active employment” for the purposes of earning vacation, termination pay, etc.

As always, when an employee takes a leave of absence, they are still entitled to participate in any benefit plans that they enjoyed while working (such as pension plans, life insurance plans, accidental death plans, extended health plans, and dental plans); and the employer must continue making those contributions unless the employee gives written notice that the employee does not intend to pay the employee contributions to those benefit plans (with some exceptions).

Upon the employee’s return from the protected leave of absence, they must be returned to the same or comparable position; and they must not be paid less than they were paid when they took the leave.

Contact the DMC LLP Employment Law Division (416-443-9280) if you have any questions about any leave of absence in Ontario.

The Content of this post is provided for informational purposes only. It is not intended to be legal, financial, tax, or other professional advice of any kind. You are advised to contact DMC (or other counsel) to seek specific legal advice concerning your individual situation.