Monday, 9 July 2018

Family Caregiver Leave in Ontario

How much time off is an employee entitled to in order to look after a sick family member?

With the expansion of Personal Emergency Leave to all employees in Ontario, regardless of the size of the employer, the answer that might immediately come to mind is ten, the first two of which must be paid.

However, both employers and employees must be mindful of the fact that while Personal Emergency Leave was expanded as a result of Bill 148, there are several other forms of protected leave including:

  • Pregnancy Leave [sections 46 – 47 of the ESA]
  • Parental Leave [sections 48 - 49]
  • Family Medical Leave [section 49.1]
  • Organ Donor Leave [section 49.2]
  • Family Caregiver Leave [section 49.3]
  • Critical Illness Leave [section 49.4]
  • Child Death Leave [section 49.5]
  • Crime-Related Child Disappearance Leave [section 49.6]
  • Domestic or Sexual Violence Leave [section 49.7]
  • Emergency Leave, Declared Emergencies [section 50.1]
  • Reservist Leave [section 50.2]

The periods of time allowed for those forms of leave can be far, far longer than the 10 days of PEL.

This post started by asking the question, “How much time off is an employee entitled to in order to look after sick family member?” and that is the question that this post will address. To that end, while there are several protected forms of leave in the ESA, this post will only look at those that concern illness.

Critical Illness Leave

I am going to start a little out of order with Critical Illness Leave, as this is the form of leave that is most likely to apply to most employees.

The right to take Critical Illness Leave is as provided for in section 49.3 of the ESA. Subsection (2) of that section provides as follows:

An employee is entitled to a leave of absence without pay to provide care or support to an individual described in subsection (5) if a qualified health practitioner issues a certificate stating that the individual has a serious medical condition.

Let’s unpack each element of that subsection, because there are a few points of clarification required.

An employee is entitled…” It bears emphasis that this right applies only to “employees” whose employment arrangements are otherwise subject to the provisions of the Ontario Employment Standards Act, 2000. The law does not apply to all workers in Ontario, so before attempting to assert any of these rights, it is important to confirm that this law applies to you.

“… is entitled to a leave of absence…” The amount of time that an employee can take is defined by subsection (4) as up to eight weeks for each individual described in subsection (5) in each calendar year.

.“…without pay…” Employers and employees should be aware that absent a contractual right or undertaking, there is no obligation on the employer to pay the employee during this leave of absence. Employees may wish to consider applying for the Family Caregiver benefit for adults, administered through the Employment Insurance (“EI”) regime. Employers are reminded that pursuant to the provisions of the Employment Insurance Act, and its regulations, a Record of Employment must be issued in a timely manner as prescribed by law. Employers should consider using code “Z00” as the reason for issuing the ROE.

“…to provide care or support to an individual described in subsection (5)”…”

The list of individuals described in subsection (5) is long. That list is as follows:

  1. The employee’s spouse.
  2. A parent, step-parent or foster parent of the employee or the employee’s spouse.
  3. A child, step-child or foster child of the employee or the employee’s spouse.
  4. A grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse.
  5. The spouse of a child of the employee.
  6. The employee’s brother or sister.
  7. A relative of the employee who is dependent on the employee for care or assistance.
  8. Any individual prescribed as a family member for the purpose of this section.

“…if a qualified health practitioner…” The words “qualified health practitioner are defined by subsection (1) to mean either (a) a person who is qualified to practise as a physician, a registered nurse or a psychologist under the laws of the jurisdiction in which care or treatment is provided to the individual described in subsection (5), or (b) in the prescribed circumstances, a member of a prescribed class of health practitioners.”

“…issues a certificate stating…” Note that pursuant to subsection (8), if the employer requests it, the employee must provide his or her employer with a copy of the certificate (read: “note”) referred to in subsection (2) as soon as possible.

I do not know what “as soon as possible means” but, employees would be prudent to ask for the note as soon as they can, and employers would be prudent to afford employees a fair amount of latitude. Truly prudent employers would also offer to pay for the note, or at least contribute towards its cost, if any.

Also, note that unlike the prohibition on asking for medical notes with respect to Personal Emergency Leave (ESA, section 50, subsection 13), employers can ask for such a certificate to substantiate a leave under this section.

“…that the individual has a serious medical condition.” Finally, note that pursuant to subsection (3), a “serious medical condition” may include a condition that is either chronic or episodic. In short, it is to the qualified health practitioner to determine whether the condition is “serious”.

With respect to the mechanics of how the leave works, subsection (6) provides that, “an employee who wishes to take a leave under this section shall (read: must) advise his or her employer in writing that he or she will be doing so.” Subsection (7) allows that, “if the employee must begin the leave before advising the employer, the employee shall advise the employer of the leave in writing as soon as possible after beginning it.” Again, see my comment about employees acting quickly and employers providing lenience.

Finally subsection (7.1) provides that, “For the purposes of an employee’s entitlement under subsection (4), if an employee takes any part of a week as leave, the employer may deem the employee to have taken one week of leave.”

The word “week” is defined by subsection (1) to mean, “a period of seven consecutive days beginning on Sunday and ending on Saturday.”

And that’s Critical Illness Leave and section 49.3 of the Ontario Employment Standards Act, 2000.

A final note, subsection (9) of section 49.3 confirms that, “An employee’s entitlement to leave under this section is in addition to any entitlement to leave under sections 49.1, 49.4, 49.5, 49.6, 49.7 and 50.” Meaning that the employee may take both Personal Emergency Leave, 10 days the first two of which must be paid, before or after taking Critical Illness Leave.

Family Medical Leave

The second most common form of leave will be Family Medical Leave, which is governed by section 49.1 of the ESA.

Subsection (2) of section 49.1 establishes the right to Family Medical Leave as follows:

An employee is entitled to a leave of absence without pay of up to 28 weeks to provide care or support to an individual described in subsection (3) if a qualified health practitioner issues a certificate stating that the individual has a serious medical condition with a significant risk of death occurring within a period of 26 weeks or such shorter period as may be prescribed.

Rather than unpack all of section 49.1, as I did with section 49.3, above, I will only address those parts of section 49.1 that are different from section 49.3.

Note that this means that, as before, the leave of absence is without pay. Again, employees may wish to consider applying for the Family Caregiver benefit for adults, administered through the Employment Insurance (“EI”) regime. Employers are reminded that pursuant to the provisions of the Employment Insurance Act, and its regulations, a Record of Employment must be issued in a timely manner as prescribed by law. Employers should consider using code “Z00” as the reason for issuing the ROE.

The period of time that an employee may take is 28 weeks, but there are conditions, the most important of which is that the “qualified health practitioner” must issue a certificate stating that the individual: has a serious medical condition with a significant risk of death occurring within a period of 26 weeks…

The list of individuals described in subsection (3) of section 49.1 differs slightly from the list of individuals in subsection (5) of subsection 49.3. The list of individuals to which this section applies is as follows:

  1. The employee’s spouse.
  2. A parent, step-parent or foster parent of the employee or the employee’s spouse.
  3. A child, step-child or foster child of the employee or the employee’s spouse.
  4. A child who is under legal guardianship of the employee or the employee’s spouse.
  5. A brother, step-brother, sister or step-sister of the employee.
  6. A grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse.
  7. A brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee.
  8. A son-in-law or daughter-in-law of the employee or the employee’s spouse.
  9. An uncle or aunt of the employee or the employee’s spouse.
  10. A nephew or niece of the employee or the employee’s spouse.
  11. The spouse of the employee’s grandchild, uncle, aunt, nephew or niece.
  12. A person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met.
  13. Any individual prescribed as a family member for the purposes of this section.

Mechanically, subsection (4) provides that, “The employee may begin a leave under this section no earlier than the first day of the week in which the period referred to in subsection (2) begins.” I.E. the first of the week in which death is imminent within 26 weeks.

Subsection (5) provides that, “The employee may not remain on a leave under this section after the earlier of the following dates: 1. The last day of the week in which the individual described in subsection (3) dies; and 2. The last day of the 52-week period starting on the first day of the week in which the period referred to in subsection (2) begins.”

Paragraph 2 of subsection (5) is ugly. I did not draft it, but I apologize for it. Subsection (5.1) tries to help that subsection by providing, “For greater certainty, but subject to subsection (5), if the amount of leave that has been taken is less than 28 weeks it is not necessary for a qualified health practitioner to issue an additional certificate under subsection (2) in order for leave to be taken under this section after the end of the period referred to in subsection (2).” I don’t think that language adds any greater certainty, but kudos to whomever wrote that for thinking that it does.

I mean, subsection (11) adds some assistance, and one would have thought that made it would make an appearance a little earlier in the section, so let me do that for you. Subsection 11 provides that:

If an employee takes a leave under this section and the individual referred to in subsection (3) does not die within the 52-week period referred to in paragraph 2 of subsection (5), the employee may, in accordance with this section, take another leave and, for that purpose, the reference in subsection (6) to “the first certificate” shall be deemed to be a reference to the first certificate issued after the end of that period.

Subsection (6) adds a fun twist by providing that, “If two or more employees take leaves under this section in respect of a particular individual, the total of the leaves taken by all the employees shall not exceed 28 weeks during the 52-week period referred to in paragraph 2 of subsection (5) that applies to the first certificate issued for the purpose of this section.” I am not sure how this is policed, or whether it only applies if the employees work for the same employer, but it is something for employees to consider, especially if they do share an employer.

What does all this mean? In my reading, it means that subsection (2) should really say that an employee may take up to 52 weeks, providing that: (a) the individual in respect of whom leave is taken does not die within that 52-week period, and (b) the doctor’s note is updated after six months confirming that death is still expected to occur within the next six months.

Note that the other mechanics, such as the employer requesting a note and the employee being required to furnish it appear in section 49.1, the subsections are just a little different from those of 49.3. Also, as with 49.1, “An employee’s entitlement to leave under this section is in addition to any entitlement to leave under sections 49.3, 49.4, 49.5, 49.6, 49.7 and 50.”

Before leaving this section, I should provide a link to my page on bereavement leave: Entitlement to Bereavement Leave in Ontario.

Critical Illness Leave

Of all of the forms of leave to take care of a sick family member, Critical Illness Leave, section 49.4, has some of the most dense and heavy language.

The entitlement to Critical Illness Leave with respect to a child is in contained within subsection (2):

An employee who has been employed by his or her employer for at least six consecutive months is entitled to a leave of absence without pay to provide care or support to a critically ill minor child who is a family member of the employee if a qualified health practitioner issues a certificate that,

(a) states that the minor child is a critically ill minor child who requires the care or support of one or more family members; and

(b) sets out the period during which the minor child requires the care or support.

A number of the words within that subsection have prescribed meanings:

  • critically ill
  • minor child
  • family member

“Critically ill” means “with respect to a minor child or adult…a minor child or adult whose baseline state of health has significantly changed and whose life is at risk as a result of an illness or injury.”

“Minor child” means “an individual who is under 18 years of age.”

“Family member” means the same thing as the list established by subsection (3) of section 49.1.

The period of time that can be taken under such entitlement is up to 37 weeks, unless, as provided in subsection (4), “the certificate described in subsection (2) sets out a period of less than 37 weeks,” if which case, the employee is only entitled to take a leave for the number of weeks in the period specified in the certificate.

The entitlement to Critical Illness Leave with respect to a adult is in contained within subsection (2):

An employee who has been employed by his or her employer for at least six consecutive months is entitled to a leave of absence without pay to provide care or support to a critically ill adult who is a family member of the employee if a qualified health practitioner issues a certificate that,

(a) states that the adult is a critically ill adult who requires the care or support of one or more family members; and

(b) sets out the period during which the adult requires the care or support.

Note the definition as previously provided.

The period of time that can be taken under this entitlement is 17 weeks, unless, as provided in subsection (7), “the certificate described in subsection (5) sets out a period of less than 17 weeks,” in which case, the employee is only entitled to take a leave only the number of weeks in the period specified in the certificate.

There are some complicated provisions in subsections (8) through (16) that I will not attempt to explain here. In short, leave can be extended if things change. Employees who find themselves in this situation, and employers of those employees would be prudent to seek individual legal advice before making any decisions or taking any action.

Takeaways for Employees with Labour Pains

The takeaway for employees with labour pains is that if you find yourself in a situation whereby you have to provide care to a family member, it may be prudent to advise your employer that you wish to take one of the following forms of protected leave: Family Medical Leave, Family Caregiver Leave, or Critical Illness Leave. Before doing so, employees would be prudent to confirm that the Employment Standards Act, 2000 actually applies to his or her employment and that all the conditions for taking leave are met. To that end, employees would be prudent to have an earnest conversation with their family member’s doctor(s), as hard as that conversation may be. Once you are sure you are eligible, be candid with your employer. Try to provide as much information as possible and let your employer know how long you expect to be absent. Ask for an ROE and explain why it is necessary.

Takeaways for Employers with Labour Pains

It is important for employers to note that Personal Emergency Leave, while important is by no means the only form of protected leave to which an employee may be entitled. The easiest example of this fact is pregnancy and parental leave, both of which are protected forms of leave in additional to PEL. Family Medical Leave, Family Caregiver Leave, or Critical Illness Leave are all forms of job-protected leave in Ontario and most workers in Ontario will be entitled to take such forms of protected leave. Employers who terminate in the face of such right face serious consequences.

As mentioned above, the code for issuing an ROE in such case is “Z00”. As some employers will know, the code for a dismissal is “M00”. The lesson therefor is “don’t M00 if it’s a Z00”.

If you are an employer and one of your employees is asking about taking an extended leave of absence, before doing anything rash, contact the professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP; we would be happy to be of service to your business or organization.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.

Sean P. Bawden is a partner with Kelly Santini LLP, located in Ottawa, Ontario, Canada. He practices in the areas of employment law and civil litigation. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College in Ottawa.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

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