Not too long ago, pregnancy and parental leaves were the only job-protected leaves under Ontario’s employment standards laws.1 Over the course of the last 12 years, new job-protected leaves have been added to the Employment Standards Act, 2000 (the “ESA”)2 at an ever-increasing pace:
- Personal emergency leave (section 50.1) in 2001
- Family medical leave (section 49.1) in 2004
- Declared emergency leave (section 50.1) in 2006
- Reservist leave (section 50.2) in 2007
- Organ donor leave (section 49.2) in 2009
The addition of both personal emergency and family medical leaves quickly captured the attention of Ontario employers, as they considered how they might need to change workplace policies and practices to comply with these new laws. Most of the time employers got it right! However, when they got it wrong, the consequences of non-compliance often proved to be a costly mistake.
The latter three leaves, in contrast, largely escape the attention of most employers. This is likely because relatively few employees take reservist or organ donor leave, and there has not yet been a declared emergency in the province of Ontario. Put differently, these leaves seem like small potatoes next to the business impact of other leaves under the ESA.
Fast forward a few years.
On March 5, 2013, the Ontario government introduced Bill 21, Employment Standards Amendment Act (Leaves to Help Families), 2013. If passed, this new legislation will create three new job-protected leaves under the ESA:
- Family caregiver leave (section 49.3) – Provides up to 8 weeks’ unpaid leave each calendar year to provide care or support to a family member who has a serious medical condition. “Serious medical condition” is not defined. There is no requirement to complete a certain minimum period of employment to qualify for such leave.
- Critically ill child care leave (section 49.4) – Provides up to 37 weeks’ unpaid leave to provide care or support to a critically ill child, for employees who have completed 6 consecutive months of employment with the employer. “Critically ill child” is defined as a child whose baseline state of health has significantly changed and whose life is at risk as a result of an illness or injury.
- Crime-related child death or disappearance leave (section 49.5) – Provides up to 104 weeks’ unpaid leave if a child dies, or up to 52 weeks’ unpaid leave if a child disappears, as a probable result of a crime, for employees who have completed 6 consecutive months of employment with the employer. An employee is not entitled to such leave if the employee is charged with the crime or it is probable that the child was a party to the crime.
These new leaves, if passed, will undoubtedly generate interest among employees and employers alike. An expanded group of employees will qualify for unpaid time off work. Employers will, in turn, need to figure out how to meet the needs of their businesses when such leaves occur.
Bill 21 passed Second Reading in late September. It was ordered for Third Reading earlier this month. Given the way that Canadian courts have been expanding employer obligations when faced with employee family care responsibilities, we fully expect that this Bill will receive Royal Assent.
We will keep our readers posted!
1 Disabled employees unable to work had, and continue to have, protections under Ontario’s Human Rights Code.
2 Information about each job-protected leave under the ESA can be found via the hyperlinks in this blog.