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The Ontario government has introduced Bill 30, the Family Caregiver Leave Act (Employment Standards Amendment), 2011. If passed, the bill would amend the Employment Standards Act, 2000 (ESA) to permit employees to take an unpaid leave of absence of up to eight weeks in order to provide care or support to a sick family member.

Under Bill 30, an employee would be entitled to an unpaid leave of absence to provide “care or support” to the following family members/individuals who have a “serious medical condition”:

  • the employee’s spouse;
  • a parent, step-parent or foster parent of the employee or the employee’s spouse;
  • a child, stepchild or foster child of the employee or the employee’s spouse;
  • a grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse;
  • the spouse of a child of the employee;
  • the employee’s brother or sister;
  • a relative of the employee who is dependent on the employee for care or assistance; and
  • any individual prescribed under the regulations as a family member.

Conditions and limitations to obtaining leave
Bill 30 places a few conditions and limitations on the leave.

  • An employee would only be able to take up to eight weeks’ leave per calendar year for each individual noted above.
  • A qualified health practitioner must issue a certificate stating that the individual to be cared for or supported has a “serious medical condition.” (However, note that what constitutes a “serious medical condition” is not defined.) The employee only needs to provide the certificate “if requested by the employer.”
  • An employee must advise the employer in writing of his or her intention to take the leave before taking it or as soon as possible after beginning the leave.
  • An employee may take the leave of absence only in full-week periods.

Family caregiver leave versus family medical leave/emergency leave
If passed, Bill 30 would provide for time off without pay to support sick family members. While family medical leave and emergency leave also allow for time off to deal with sickness, there are some important differences between the three.

  • Family caregiver leave would apply to supporting family members with a “serious medical condition.” However, family medical leave applies only in more limited situations where there is a “serious medical condition with a significant risk of death” to the family member occurring within a 26-week period.
  • While the 10-day emergency leave provisions apply to workplaces with more than 50 employees, there would be no such threshold to take family caregiver leave, and no threshold exists to take family medical leave.
  • Part of the emergency leave entitlement is the right to unpaid time off to deal with personal illnesses. As is the case with family medical leave, family caregiver leave would not cover personal sick time. Instead, it would provide for time off to support certain family members suffering “serious medical conditions.

Bill 30 makes it clear that the entitlement to family caregiver leave is in addition to any entitlement to family medical leave or emergency leave. In other words, the entitlements are separate and days spent off on one leave could not be counted as days spent off on another. For example, this could, in theory, lead to an employee taking his or her eight weeks of family caregiver leave, followed by eight weeks of family medical leave and followed by 10 days of emergency leave.

Rights during leaves
Like other statutory leaves (e.g., pregnancy leave, emergency leave, family medical leave), the general provisions concerning leaves under sections 51 to 53 of the ESA would continue to apply to the proposed family caregiver leave. For example, employees coming back from the leave would generally have to be reinstated to the same position held prior to the leave or to a “comparable” position (at equal or greater pay) if the position no longer existed. Also, employees would continue to participate in their benefits plans unless they elected, in writing, not to do so.

Employment insurance
Currently, employees who take family medical leave are generally eligible to receive employment insurance (EI) from the federal government. It remains to be seen whether the federal government would also provide EI to those taking family caregiver leave.

Leave of absence entitlements under the ESA continue to grow. If Bill 30 passes, family caregiver leave would be the sixth unpaid leave of absence provision passed by the Ontario government in approximately seven years. With the continued increase in statutory leaves, it is important to structure your operations and staffing requirements to ensure minimal disruption in case employees exercise their rights to a leave. It is also important to review your internal policies and/or collective agreements to ensure that they are consistent with the ESA leave of absence provisions.

Daniel Pugen is an associate in McCarthy Tétrault’s Labour and Employment Group. dpugen@mccarthy.ca

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© Copyright 2014 Rogers Publishing Ltd. Originally published on benefitscanada.com

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