As part of the overhaul of Ontario’s employment legislation that came into effect this past January, every employee in Ontario is now entitled to a brand new job-protected leave of absence, called sexual or domestic violence leave.
This statutory leave of absence is part of the government’s effort to end gender-based violence as it requires employers to accommodate eligible employees who require time off for reasons of sexual or domestic violence.
Eligibility
To obtain this leave of absence, an employee must have been employed for at least 13 consecutive weeks, and the employee or the employee’s child must have experienced, or have been threatened with, sexual or domestic violence.
The leave of absence must also be taken for a very specific and limited purpose as set out in the law, being:
- To seek medical attention for the employee or the child of the employee in respect of a physical or psychological injury or disability caused by the domestic or sexual violence.
- To obtain services from a victim services organization for the employee or the child of the employee.
- To obtain psychological or other professional counselling for the employee or the child of the employee.
- To relocate temporarily or permanently.
- To seek legal or law enforcement assistance, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic or sexual violence.
Duration of the Leave
There are two different lengths of sexual or domestic violence leave that an employee may choose to take within a calendar year: a 10-day period and a 15-week period. The law is clear that the employee may take both leaves in one year.
The 10-day entitlement may be taken a day (or a part of a day) at a time.
The 15-week entitlement does not have to be taken continuously. Any part of a week taken will be deemed to be one full week.
The law notes that employees cannot carry over any unused leave time to the following calendar year.
How Employees Take the Leave
An employee must advise their employer of their intention to take a sexual or domestic violence leave of absence.
If the employee cannot advise their employer before taking the leave, then the notice must be given to the employer as soon as possible after the leave is started.
For the 10-day leave, the notice does not need to be in writing. But for the 15-week entitlement, the notice must be in writing.
What this means is that if an employee takes an unexplained leave of absence, and then 4 weeks later says it was for sexual or domestic violence leave (and has no reasonable explanation as to why they could not inform the employer sooner), then they may not automatically be eligible for this leave of absence. They must give notice before the leave, or as soon as possible after the leave is taken.
Paid or Unpaid Leave?
The first five (5) days are paid of any sexual or domestic violence leave in each calendar year (for the 10-day or 15-week leave). All of the remaining days are unpaid.
Employers are able to request evidence that is “reasonable in the circumstances” of the employee’s entitlement to the leave, like for example, when the employee knew they had to take the leave of absence, or which of the 5 reasons (as above) they are using to take the leave.
Remember, what is “reasonable in the circumstances” is different in every case. For some cases, it may depend on whether there is a pattern of absences; and in other cases, it may depend on the duration of the leave, whether any evidence is available, or the cost of the evidence.
If you’re unsure about this leave of absence or any other leave of absence, give us a call and we would be happy to chat.
