|
Employment Law (Ontario) Legal Guide
(01 January 2016)
Chapter 5 - Benefits Plans, Leaves and Other ESA Rights- Benefit Plans
(a) General
(b) Continuation of Benefit Plans on Inadequate Notice of Termination
(c) Illegal Discrimination and "Affirmative Action" Exceptions
. General
. Exceptions
(d) Effect of Leave on Benefit Plans
(e) Benefit Plan Enforcement
- Leaves of Absence
(a) General
(b) Reinstatement Rights After Leave
(c) Pregnancy and Parental Leave
. General
. Basic Eligibility
. Commencement and Termination of Pregnancy Leave
. Commencement and Termination of Parental Leave
. Termination of Employment by Employee After Commencement of Pregnancy or Parental Leave
(d) Family Medical Leave
. General
. Qualified Relatives
. Timing of Leave, Documentation and Notice
(d.1) Family Caregiver Leave
. General
. Qualified Relatives
. Timing of Leave, Documentation and Notice
(d.2) Critically-Ill Child Care Leave
. General
. Medical Certificate
. Notice, Timing and Duration of Leave
(d.3) Crime-Related Child Death and Disappearance Leave
. General
. Notice and Verification
. Duration of Leave and Changes in Circumstances
(e) Private Emergency and Sickness Leave
. General
. Grounds
. Note Re "Sick Leave"
. Notice and Documentation
. Employees Exempted from Emergency Leave Eligibility in Some Circumstances
(f) Public Emergency Leave
(g) Reservist Leave
. Overview
. Commencement
. Terms of Reservist Leave
. Notice and Evidence
. Exemptions
(g.1) Organ Donor Leave
. Overview
. Duration of Leave
. Commencement and Termination of Leave
(h) Leave and Vacation Entitlements
(i) Enforcement of Leave Rights
. Overview
. ESO Compliance Orders
. Reprisal-Type Remedies
. Civil Courts
- Other Employee Rights
(a) Posting and Delivery of Rights Information
(b) Lie Detectors
________________________________________
Important Note:
The Employment Standards Act (ESA) is riddled with many full and partial exemptions to it's provisions, as well as numerous 'special rules' for various industries or types of work. While I may note these variations throughout this Employment Law (Ontario) Guide when explaining individual topics generally, readers facing a specific fact situation should carefully review Ch.1 "Primary, ESA-Special and ESA-Exempt Employment Sectors" to determine if their specific employment situation is governed by any of these exemptions or special rules.
1. Benefit Plans
(a) General
The term "benefits" applies to any and all of a series of extra-wage compensation provided to employees, including amounts or reimbursements paid - to any persons (eg. family member beneficiaries) - by reason of [Reg 286/01, s.1 Defns]:- superannuation,
- retirement,
- disability,
- accident,
- sickness,
- medical, hospital, nursing, drug or dental expenses or other similar amounts,
- termination [this normally refers to contractual termination benefits (eg. retraining programs), as opposed to ESA or wrongful dismissal "pay-in-lieu" payments (which are covered in Ch.6: "Termination and Wrongful Dismissal")];
- death.
(b) Continuation of Benefit Plans on Inadequate Notice of Termination
As benefit plans invariably are meant to continue through the life of the employment, they also continue for the period that the ESA requires proper notice of termination to be given, as though the employee were "actively employed" during that period [ESA s.62(1)] (the notice periods are covered in Ch.6: "Termination and Wrongful Dismissal").
Thus, when short or no advance notice of termination is given (and assuming no "just cause" or other exceptions to the notice requirements) benefits continue by law for the ESA-required period. This is the case regardless of fault in the employer's notice. Of course, benefits also continue where an allegation of just cause is initially alleged, but later reversed by ESA or other legal ruling [although see "res judicata" complications on this issue in Ch.2, s.1(b): "Advocacy: Employee Advocacy: Split Jurisdiction and Wrongful Dismissal"].
In addition - if inadequate notice is given - the value of the employer's contribution to the benefit plan is payable to the employee as though it was unpaid wages [ESA s.62(2-3)].
Cases where a benefit claim is made within this 'disputed period' can sometimes greatly add to the stakes and complexity in a common law wrongful dismissal claim, particularly if the claim falls outside the ESA notice period but potentially within the common law notice period.
(c) Illegal Discrimination and "Affirmative Action" Exceptions
. General
The right to receive benefits under benefit plans, particularly health and family-related benefits, is often conditioned by personal circumstances such as age, gender, and marital status. These (and other) personal characteristics have become the subject of anti-discrimination legal protections under the Ontario Human Rights Code ("HRC"). Reflecting this (at least partially) is a ESA general rule that neither employers or their agents [ESA s.44(1-2)]: ... shall provide, offer or arrange for a benefit plan that treats any of the following persons differently because of the age, sex or marital status of employees:
1. Employees.
2. Beneficiaries.
3. Survivors.
4. Dependants. Neither may employers' organizations, employees' organizations, or their agents "directly or indirectly" cause such illegal discriminaton [ESA s.44(2)].
As well, the prohibition is broadened to capture not only "employers" as conventionally defined in the ESA [ESA s.1(1) defn], but also so-called 'group benefit plans' where "a group or number of unaffiliated employers or an association of employers act[s] for an employer in relation to a pension plan, a life insurance plan, a disability insurance plan, a disability benefit plan, a health insurance plan or a health benefit plan" [ESA s.43]. These specific types of benefit plans are defined in s.1 of the ESA Reg 286/01: Benefit Plan Regulation.
"Age" for these purposes only covers those from 18 to 64 years of age [Reg 286/01, s.1].
"Sex" for these purposes, in addition to gender, includes any distinction relating to who "is or is not a head of household, principal or primary wage earner or other similar condition" and any distinction relating to pregnancy.
"Marital status" for these purposes - in addition to married, unmarried (single), or widowed/widowered status - includes being unmarried and supporting (in whole or part) dependent children, and as well "common law status as defined in the relevant benefit plan" [Reg 286/01, s.1].
Compliance with these non-discrimination provisions may not be achieved by an employer reducing either the benefits available under the plan, or their contribution to the plan, in an effort to thereby achieve 'equality' [Reg 285/01, s.12].
. Exceptions
I have not attempted in this Employment Law (Ontario) Guide to fully cover complexities and 'discrimination 'exceptions that can arise under the ESA respecting benefit plans, particularly complex pension and insurance issues. Readers may want to review the main ESA Regulation on these issues themselves (linked above).
That said, the general non-discrimination rule (above) is subject to a wide range of exceptions akin to those which are often legally tolerated by human rights law regarding insurance coverage, disability plans and health plans - ostensibly on "actuarial" grounds. On these the reader may wish to review ss.1 and 5-9 of the Regulation linked above.
On pension related issues readers should also be aware that, in addition to some provisions of Reg 286/01 [ss.1-4], private pension plans are generally governed by the Pension Benefits Act, which is quite complex in its own right.
Note further that discrimination on the basis of medical disability ("handicap") is not expressly included within the above prohibitions, nor are others such as sexual orientation. Any benefits discrimination occuring under categories not listed above [ESA s.44(1-2)] may still be challengeable under the more primary Human Rights laws:
See the Isthatlegal.ca Human Right Law (Ontario) Legal Guide
(d) Effect of Leave on Benefit Plans
The various types of employee "leaves" of absence are discussed in s.2 of this chapter. Generally, for most legal purposes, employment is considered to continue during periods of leave [ESA s.52(1)].
Similarly, during periods of leave an employee has the right to continue to maintain eligibility for the following types of benefit plans [ESA s.51(1-2), Reg 285/01, s.10]:- pensions,
- life insurance,
- accidential death,
- extended health,
- dental,
- "any prescribed type of benefit plans" [no additional ones are listed in the Regulations].
However as leaves are typically unpaid, the employee must independently continue to pay their share of premiums or contributions to such plans that would normally otherwise be deducted from their wages. If this is done, the employer's duty to pay their share continues as well [ESA s.51(3)], thus between them maintaining full premium payment on the plan.
Alternatively, an employee on leave may (in writing) voluntarily "opt out" of the benefit plan, thus relieving themselves from responsibility for paying their "share" of the benefit premiums or contributions of these plans (and of course, losing the value of the employer's contribution as well) [ESA s.51(1)].
Note however that these 'benefit continuation' and other options (above)are not available during Reservist leave [see (g), below], but are during postponements of it (presumably the reasoning is that Canadian Forces benefit entitlements carry through the deployment period) [ESA s.51(4,5)].
(e) Benefit Plan Enforcement
For reasons explained below, the remedial choice made with respect to benefit plan contraventions must be considered very carefully. Tricky jurisdictional issues lurk to snare the unwary.
Firstly, recall that "(p)ayments to which an employee is entitled from a benefit plan" are expressly excluded from the ESA definition of "wages" [ESA s.1(1) defns]. Thus the primary "employment standards officer" (ESO) level enforcement provision of the ESA [ESA s.103] is not available for this purpose, it being restricted to wage orders. Neither is the ESO authority for other monetary "compensation" orders [ESA s.104] available, it being limited to specific "reprisal"-related contraventions, which do not include benefit plan contraventions.
The most useful ESO administrative level provision for enforcement of ESA "minimum standards" regarding benefit plans will thus be the injunction-like "compliance order" provisions [ESA s.108]. These are explained in Ch.7, s.4: "ESA Administrative Enforcement: Complaint Resolution Orders and Related Measures: Injunction Orders". However injunction-type remedies may not be adequate to fully compensate for benefit plan contraventions as they are limited to barring or requiring behaviour (which may be fine to require future benefit plan entitlements) but is inadequate to provide past monetary compensation. Further, ESO "compliance orders" jurisdiction is limited to enforcing ESA "minimum standards" regarding benefit plans only, entirely inadequate if the dispute involves any level of "better" contractual benefit plan entitlement.
Note however that the ES Director may refer benefit plan issues to the Ontario Labour Relations Board (OLRB): see Ch.8, s.12: "OLRB Procedures Re ESA Matters: Benefit Plan Issue Referrals", which has both compensatory and injunctive remedial jurisdiction [ESA s.121(3)]. This addresses the monetary compensation jurisdiction problem, but the the OLRB's jurisdiction is still limited to enforcing the ESA's "minimum standards" benefit plan provisions only.
The only place in which the full substantive legal issues (ie. both ESA and contractual) and full remedial legal issues (ie. both monetary and injunctive) may be heard is civil court [see Ch.2: "Advocacy"].
2. Leaves of Absence
(a) General
Leaves of absence ("leaves") are essentially periods of time off work, usually unpaid. Essentially the "employment" relationship continues, though the employee's duties are temporarily suspended.
Modern Ontario employment law has greatly expanded the forms and availability of minimum leave entitlements, which now include leaves for pregnancy, new parents and family medical, military reservist deployment and some emergencies. New in 2009 was 'organ donor leave'. Note of course that these 'minimum-standard' leaves do not bar the contractual granting of other (even paid) leave entitlements [ESA s.5(2)].
Leave time counts toward seniority, length of service and length of employment [ESA s.52(1)], except that it does not count to complete probationary employment [ESA s.52(2); see Ch.1: "Basics"]. The interaction of leave and some benefit plan entitlements is discussed above in s.1(d): "Effect of Leave on Benefits Plans".
(b) Reinstatement Rights After Leave
Employees taking any of the ESA-covered leaves discussed in this section [s.2] are generally entitled to return to their old job - or to a comparable position if their old job position has been eliminated [ESA s.53(1)]. Note as well that on return the employee is at least entitled to their old wage, including any increases that would have taken effect had the leave not been taken [ESA s.53(3)].
However - and this can be a big "however" - this does not apply to preserve employment where the employer terminates it "solely for reasons unrelated to the leave" [ESA s.53(2)]. Coupling this with the general law that an employer may terminate employment on proper notice without any duty to give a reason, this 'protection' may be of limited value except in cases where an employer is particularly clumsy in their manner of termination. In such a case the employee may wish to have regard to the unique "reprisal"-related reinstatement order remedies which are available in leave contravention cases [referred to in (i) "Enforcement of Leave Rights", below].
For Reservists [see (g), below] (and unless another date for reinstatement is prescribed by Regulation), reinstatement after Reservist Leave terminates may be delayed by the employer for two weeks, or until the next regular pay day, whichever comes later [ESA s.53(1.1)]. For purposes of vacation deferral [see (h): "Leave and Vacation Entitlements", below] and duration of employment counting [see (a): "General", above], any such additional delay is deemed to be leave time [ESA s.53(1.2)].
(c) Pregnancy and Parental Leave
. General
Pregnancy leave and parental leave - the former obviously unavailable to males - are sometimes 'chained' together by mothers on the birth of a child. Because of this, and because both types of leave focus around the entry of a child into the employee's life - I have dealt with them here in a combined fashion.
Understanding and managing the commencement, duration and termination of the leaves can be complex - and as well there are notice requirements for both commencement and early termination of the leaves. I have devised the below charts which I hope will assist in explanation.
Note that for purposes of these provisions [ESA s.45(1)]:- "'parent' includes a person with whom a child is placed for adoption and a person who is in a relationship of some permanence with a parent of a child and who intends to treat the child as his or her own, and "child" has a corresponding meaning"; and
- "spouses" includes two persons who are either married, entered in good faith into a void or voidable marriage, or who "live together in a conjugal relationship outside marriage."
. Basic Eligibility
Eligibility for pregnancy leave is not available if the woman's due date is less than 13 weeks after her employment commences [ESA s.46(1)] (ie. for very new employees).
Similarly, eligibility for parental leave is not available if the birth or "coming of the child into the employee's custody, care and control for the first time" is less than 13 weeks after the parent's employment commences [ESA s.48(1)].
Commencement and Termination of Pregnancy Leave| Commencement | Commencement Notice | Termination |
|---|
Not BEFORE the earlier of:
. 17 weeks before due date, and
. the birth date (if any) [ESA s.46(2-3)]
Not LATER than the earlier of:
. the due date, and
. the birth date [ESA s.46(3.1)]] | Two weeks written notice by employee to employer of commencement AND (if
requested) a medical certificate stating the due date. [ESA s.46(4)]
The date may be moved UP as long as two weeks revised written notice are given
before the new date, or BACK as long as two weeks written notice are given
before the original selected date [ESA s.46(5)].
OR
If the employee unexpectedly stops work due to a pregnancy complication, they
shall give written notice of when the leave began or will begin, within two
weeks of the stoppage AND (if requested) a medical certificate stating that she
is thereby unable to perform the duties of her position and her due date [ESA
s.46(6)].
OR
If the employee unexpectedly stops work due to a still- birth or miscarriage
occuring before the due date, they shall give written notice of when the leave
began or will begin, within two weeks of the stoppage AND (if requested) a
medical certificate stating the due date and the date of the birth, still-birth
or miscarriage [ESA s.46(6)]. | If the mother has parental leave eligibility (see below), after 17 weeks.
If the mother does not have parental leave eligibility, then the later of:
. 17 weeks, and
. 6 weeks after the birth, still-birth or miscarriage [ESA s.47(1)]
OR
Earlier, on 4 weeks written notice by the employee [ESA s.47(2)]
This date may be moved UP as long as 4 weeks revised written notice are given
before the new date, or BACK as long as 4 weeks written notice are given before
the originally selected date. [ESA s.47(3)] |
|---|
Commencement and Termination of Parental Leave
| Commencement | Commencement Notice | Termination |
|---|
No later than 52 weeks after birth or the "coming of the child into the employee's custody, care and control for the first time" [ESA s.48(2)]
EXCEPT THAT
Where an employee mother has also already taken pregnancy leave (see above), then the parental leave must follow immediately (except where custody, care and control for the first time has not yet occured)[ESA s.48(3)]
AND
If the child unexpectedly comes into their custody, care and control for the first time and the employee therefore stops working, then leave begins then and the employee must give written notice within two weeks after the stoppage [ESA s.48(6)]. | Two weeks written notice [ESA s.48(4)]
Thus may be moved UP as long as two weeks revised written notice is given before the new date, or BACK as long as two weeks revised written notice are given before the originally selected date [ESA s.48(5].
OR
If the child unexpectedly comes into their custody, care or control for the first time and the employee therefore stops working, then leave begins then and the employee must give written notice within two weeks after the stoppage [ESA s.48(6)].
| 37 weeks after commencement, but 35 weeks if the employee also took pregnancy leave [ESA 49(1)]
OR
Earlier, on 4 weeks written notice by the employee [ESA s.49(2)]
This may be moved UP as long as 4 weeks revised written notice are given before the new date, or BACK as long as 4 weeks revised written notice are given before the original selected date [ESA 49(3)] |
|---|
. Termination of Employment by Employee After Commencement of Pregnancy or Parental Leave
While generally employees are not required to give any notice of termination, employees terminating their employment during or on the expiry of pregnancy or parental leave are required to give 4 weeks written notice of the termination to the employer [ESA s.47(4), 49(4)]. There is a (perhaps unnecessary) exception from this notice requirement for "constructive dismissal", which is a form of indirect termination of the employment brought about by unacceptable behaviour of the employer [see Ch.6, s.2(e): "Termination and Wrongful Dismissal: Termination and Related Topics: Constructive Dismissal") [ESA s.47(5), 49(5)].
(d) Family Medical Leave
. General
Employees are entitled to up to eight weeks of unpaid "family medical leave" to provide care and support to a qualified relative who has been medically-certified as having a "serious medical condition with a significant risk of death occurring within a period of 26 weeks" (ie. six months) [ESA s.49.1(2)].
The government-prescribed form for this medical certificate is linked here:
Medical Certificate to Support Entitlement to Family Caregiver Leave, Family Medical Leave, and/or Critically Ill Child Care Leave
Of course, this leave is a "minimum standard", and does not preclude employment contracts - or the parties - from granting other more generous arrangements (for instance, extended or even paid family leave).
In the event that two or more employees from the same workplace are related to the unwell qualified relative, the total medical leave taken by them with respect to that person shall not exceed the basic eight week entitlement [ESA s.49.1(6)].
Family medical leave is a leave right additional to the emergency leave right that is enjoyed by employees of large employers [see (e) below], and family caregiver leave, critically ill child care leave, crime-related child death or disappearance leave [ESA s.49.1(12)].
Note the availability of leave-related Employment Insurance (EI) wage replacement coverage. This is a relatively new form of EI benefit and is explained at this link: EI Digest of Benefit Entitlements Principles: Compassionate Care Benefits.
. Qualified Relatives
Qualified relatives for family medical leave purposes include [ESA s.49.1(3), Reg 476/06]:- a spouse of the employee,
- parents, step-parents and foster parents of the employee,
- children, step-children and foster children of both the employee and their spouse;
- a brother or sister of the employee (*);
- a grandparent of the employee or of the employee's spouse (*);
- a grandchild of the employee or of the employee's spouse (*).
- a father-in-law or mother-in-law of the employee (*);
- a brother-in-law or sister-in-law of the employee (*);
- a son-in-law or daughter-in-law of the employee or of the employee's spouse;
- an uncle or aunt of the employee or of the employee's spouse;
- a nephew or niece of the employee or of the employee's spouse;
- a spouse of the employee's grandchild, uncle, aunt, nephew or niece;
- a foster parent of the employee's spouse.
(*) includes the "step" relationship (eg. step-child, step-parent, etc).
Also included is "a person who considers the employee to be like a family member", although only if: ... the employee, on the employer's request, provides the employer with a copy of the document provided to an agency or department of the Government of Canada for the purpose of claiming compassionate care benefits under the Employment Insurance Act (Canada) in which it is stated that the employee is considered to be like a family member. Note that for purposes of these provisions [ESA s.45(1)]:- "'parent' includes a person with whom a child is placed for adoption and a person who is in a relationship of some permanence with a parent of a child and who intends to treat the child as his or her own, and "child" has a corresponding meaning"; and
- "spouses" includes two persons who are either married, entered in good faith into a void or voidable marriage, or who "live together in a conjugal relationship outside marriage."
. Timing of Leave, Documentation and Notice
Family medical leave may begin no sooner than the commencement of the week [employment weeks start on Sunday: ESA s.49.1(1)] in which the condition is medically-verified as commencing (not the date that the certificate was issued) [ESA s.49.1(4)], thus accomodating the common situation of a quickly-arising medical crisis by tying the period of the leave to the date of the medical crisis, rather than the date at which the medical certificate was either written or provided to the employer.
It must also be taken in full employment 'weeks' [ESA s.49.1(7)], which for these purposes is defined as Sunday to Saturday [ESA s.49.1(1)]. If an employee ceases to provide care or support during such a week, then their leave entitlement continues to the end of the employment week. However the employee may return earlier if the employer agrees, either in writing or otherwise - though the entire week is still counted against their leave entitlement [ESA 52.1(1,2)].
Except where the employee has already terminated the family medical leave themselves, or where the 8 week period has already expired, family medical leave ends on the Saturday of (either) the week that the 26-week period established by the medical note ends or, the week in which the qualified relative dies - whichever is earlier [ESA s.49.1(5)].
Employees taking family medical leave are required to give written notice of that intention to their employers either before taking the leave, or otherwise as soon as possible after beginning it [ESA s.49.1(8-9)].
As well, if requested by the employer, the employee shall provide them with a copy of the medical certificate [ESA s.49.1(10)]. Note the special medical certification required for qualifying a person who "considers the employee to be like a family member" as a "qualified relative" (see "Qualified Relatives", above). Note that employees failing to provide satisfactory certification of the condition's commencement may be treated by the employer as being on an unauthorized absence, putting them at risk of termination.
Note however that if the qualified relative does not die within the 26-week period established by the original medical note, then a new entitlement to family medical leave arises upon new and similar medical verification [ESA s.49.1(11)]. The wording is ambiguous as to whether this can be repeated further times, but in my opinion leans towards the interpretation that it can.
(d.1) Family Caregiver Leave
. General
Employees are entitled to up to eight weeks per calendar year of unpaid "family caregiver leave" to provide care and support to a qualified relative who has been medically-certified as having a "serious medical condition" (which may include either a chronic or an episodic condition) [ESA s.49.3(2,3)].
The government-prescribed form for this medical certificate is linked here:
Medical Certificate to Support Entitlement to Family Caregiver Leave, Family Medical Leave, and/or Critically Ill Child Care Leave
This eight week entitlement accrues for each qualified relative, and so could total more than eight weeks per calendar year [ESA 49.3(4)].
Family medical leave is a leave right additional the emergency leave right that is enjoyed by employees of large employers [see (e) below]"), to family medical leave, critically ill child care leave and crime-related child death or disappearance leave [ESA s.49.3(9)].
. Qualified Relatives
Qualified relatives for family caregiver leave purposes include [ESA s.49.3(5), *** more to be added by Reg]:- a spouse of the employee,
- parents, step-parents and foster parents of the employee or the employee's spouse,
- children, step-children and foster children of either the employee or their spouse;
- a brother or sister of the employee (*);
- a grandparent or grandchild of the employee or of the employee's spouse (*);
- a spouse of the employee's child;
- a relative of the employee who is dependent on the employee for care or assistance
** "as prescribed", so expect to add more from the Reg
(*) includes the "step" relationship (eg. step-child, step-parent, etc).
. Timing of Leave, Documentation and Notice
A week for these purposes means a calendar work week, commencing on Sunday and ending on Saturday [ESA 49.3(1)].
Employees taking family caregiver leave are required to give written notice of that intention to their employers either before taking the leave, or otherwise as soon as possible after beginning it [ESA s.49.3(6,7)]. As well, if requested by the employer, the employee shall provide them with a copy of the medical certificate as soon as possible [ESA s.49.3(8)].
(d.2) Critically Ill Child Care Leave
. General
Employees with at least six consecutive months of employment with the employer are entitled to 'critically ill child care' leave "to provide care or support to a critically ill child" [ESA 49.4(2)]. This leave is unpaid.
For these purposes a "child" includes a "child [ie. a natural born child], step-child, foster child or child who is under legal guardianship, and who is under 18 years of age" [ESA 49.4(1)]. A 'critically ill child' is one "whose baseline state of health has significantly changed and whose life is at risk as a result of an illness or injury" [ESA 49.4(1)], as certified by a qualified health professional [ESA 49.4(2)].
Critically-ill child care leave is a leave right additional to the emergency leave right that is enjoyed by employees of large employers [see (e) below], family caregiver leave [see (d.1) above], family medical leave [see (d) above], and crime-related child death or disappearance leave [see (d.3) below] [ESA s.49.4(18)].
. Medical Certificate
For these purposes, "qualified health professional" includes a physician, registered nurse or psychologist qualified as such in the jurisdiction where the child will be receiving care or treatment (*** and as prescribed: check Regs) [ESA 49.4(1)]. The medical certificate, a copy of which may be demanded by the employer for delivery "as soon as possible" [ESA 49.4(17)], must certify "that the child is a critically ill child who requires the care or support of one or more parents" and set out the period over which care or support is required [ESA 49.4(2)].
The government-prescribed form for this medical certificate is linked here:
Medical Certificate to Support Entitlement to Family Caregiver Leave, Family Medical Leave, and/or Critically Ill Child Care Leave
. Notice, Timing and Duration of Leave
Employees wishing to take critically-ill child care leave must, in writing, both notify their employer of this intention and submit a written plan indicating the weeks they will be taking it [ESA 49.4(14)]. The leave plan may be subsequently altered on written agreement of the employee and employer [ESA 49.4(16)]. Where leave must be taken prior to notice being given to the employer, then the employee shall comply with the notice duty as soon as possible, and must still provide the employer with a written plan [ESA 49.4(15)].
The basic leave entitlement is that of a maximum of 37 weeks (less if the medical certificate specifies less) in the designated 52-week eligibility period (explained below) for one child, or for more than one child if they are all "critically ill as the result of the same event". This limit applies even if more than one employee takes the leave [ESA 49.4(3-6,11)] (ie. two employees taking leave with respect to the same child/ren may not take more than 37 weeks combined).
The 52-week eligibility period begins on the earlier of (1) "the first day of the week in which the certificate is issued" or (2) "the first day of the week in which the child in respect of whom the certificate was issued became critically ill". For these purposes a week "means a period of seven consecutive days beginning on Sunday and ending on Saturday" [ESA 49.4(1)].
If the need subsequently arises for additional leave within the eligibility period, and there is 'unused' leave (ie. less than the 37 weeks has been used), then upon the issuance of a new medical certificate that additional leave may be taken [ESA 49.4(12-13)]. Unused leave expires at the end the eligibility period, though a new eligibility period may then commence [ESA 49.4(7,8,13)].
Where the child dies leave continues until the end of the week of the death, though where more than one child are subject of the leave it continues to the end of the week that the last child dies [ESA 49.4(9-10].
(d.3) Crime-Related Child Death and Disappearance Leave
. General
Employees with at least six consecutive months of employment with the employer are entitled to:- crime-related child death ("child death leave") leave "if a child of the employee dies and it is probable, considering the circumstances, that the child died as a result of a crime" [ESA 49.5(2)]. This leave is unpaid.
- crime-related child disappearance leave" ("child disappearance leave") if a child of the employee disappears and it is probable, considering the circumstances, that the child disappeared as a result of a crime" [ESA 49.5(3)] . This leave is unpaid.
For these purposes a "child" includes a "child [ie. a natural born child], step-child or foster child, any of whom are under 18 years of age" [ESA 49.5(1)]. "Crime" means any Criminal Code offence ["other than an offence prescribed by the regulations made under paragraph 209.4 (f) of the Canada Labour Code (Canada)" - SS: no such provision exists in the Canada Labour Code at the date of writing].
These forms of leave are not available to the employee [ESA 49.5(4)]:- "if the employee is charged with the crime"; or
- "if it is probable, considering the circumstances, that the child was a party to the crime".
Crime-related child death or disappearance leave is a leave right additional to the emergency leave right that is enjoyed by employees of large employers [see (e) below], family caregiver leave [see (d.1) above], family medical leave [see (d) above] and critically-ill child care leave [see (d.2) above] [ESA s.49.5(18)].
Notice and Verification
Employees wishing to take this leave must, in writing, both notify their employer of this intention and submit a written plan indicating the weeks they will be taking it [ESA 49.5(14)].
Where leave must be taken prior to notice being given to the employer, then the employee shall comply with the notice duty as soon as possible, and must still provide the employer with a written plan [ESA 49.5(15)].
Changes to the leave plan may be made if [ESA 49.5(16)]:- the changes remain consistent with the employee's leave entitlement;
- written request is made by the employee to the employer and written consent is given by the employer;
- four weeks notice of the change is given by the employee to the employer.
The employer made require from the employee "evidence reasonable in the circumstances of the employee’s entitlement to the leave" [ESA 49.5(17)].
. Duration of Leave and Changes in Circumstances
Child death leave can run to a maximum of 104 weeks, commencing within one week after the child dies [ESA 49.5(2,10)]. Where more than one employee seeks leave for the death of one child, or where more than one child death results from the same events, the maximum leave available to all employees combined is 104 weeks [ESA 49.5(12)].
Child disappearance leave can run to a maximum of 52 weeks and, except as noted below must be taken within the 53 weeks following the disappearance [ESA 49.5(3,11)]. Where more than one employee seeks leave for the disappearance of one child, or where more than one child disappearance results from the same events, the maximum leave available to all employees combined is 52 weeks [ESA 49.5(13)].
For these purposes a week "means a period of seven consecutive days beginning on Sunday and ending on Saturday" [ESA 49.5(1)].
Except as noted below, these forms of leave must be taken in a single continuous period [ESA 49.5(8)].
Either of these forms of leave, once commenced, terminate immediately when, due to a change in circumstances, "it no longer seems probable that the child died or disappeared as a result of a crime" [ESA 45.5(5)].
Where the child is subsequently found [ESA 49.5(6,7)]:- alive within the 52-week period that begins in the week the child disappears, disappearance leave terminates 14 days after the child is found;
- dead within the 52-week period that begins in the week the child disappears, the duration of disappearance leave is extended to a maximum of 104 weeks from the date of the disappearance, whether or not the employee is still on leave when the child is found [this situation is an exception to the rule that the leave must be taken in a single continuous period: ESA 49.5(9), and to the rule that the leave must be fully taken within the 53-week period following the disappearance: ESA 45.9(11)];
- dead more than 52 weeks after the week in which the child disappeared", disappearance leave is converted to child death leave and is thus extended to 104 weeks.
. (e) Private Emergency and Sickness Leave
. General
Employees of larger employers (those who "regularly" have 50 or more employees) may be entitled to unpaid "emergency leave" for medical - and some non-medical - crises of their own, or of some of their relatives [ESA s.49.1(12), 50(1)].
Emergency leave is limited to 10 days, and the employer is entitled to count part of a day as a full day: ESA s.50(5-6)].
The right to "emergency leave" is in addition to the "family medical leave" right available to all employees as a minimum ESA standard - and while it will logically (though not technically) overlap with "family medical leave" in many cases, the grounds for "emergency" leave are broader and the duration of the leave is briefer. It is also in addition to 'organ donor leave' as discussed in (g.1).
Of course, this leave is a "minimum standard", and does not preclude parties from negotiating other more generous arrangements (for instance, paid or extended leave).
Some categories of professional employees are specifically excluded from eligibility for emergency leave in some circumstances.
. Grounds
The grounds for emergency leave include [ESA s.50(1-2)]:- the employee's own personal illness, injury or medical emergency [this makes the provision equivalent to a minimum 10 days unpaid sick leave: see below], and
- death, illness, injury, medical emergency or an "urgent matter that concerns" any of the following persons:
- the employee's spouse;
- a parent, step-parent or foster parent of the employee or the employee's spouse;
- a child, step-child or foster child of the employee or the employee's spouse;
- a grandparent, step-grandparent, grandchild or step-grandchild of the employee or of 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.
Note that for purposes of these provisions [ESA s.45(1)]:- "'parent' includes a person with whom a child is placed for adoption and a person who is in a relationship of some permanence with a parent of a child and who intends to treat the child as his or her own, and "child" has a corresponding meaning"; and
- "spouses" includes two persons who are either married, entered in good faith into a void or voidable marriage, or who "live together in a conjugal relationship outside marriage."
. Note Re "Sick Leave"
Absent some contractual entitlement, there is no common law entitlement to "sick leave" relating to the employee's own illness, either paid or unpaid. However, by contract employers often allow a fixed number of paid sick days per year.
The ESA minimum standards "emergency leave" provisions above - although applicable only to employees of larger employers - can operate to provide 10 days unpaid sick leave as a minimum standard.
Otherwise, most employers will tolerate some unpaid leave for illness - but where termination results the issue will have to be addressed as a wrongful dismissal matter, typically in civil court. In such cases the Human Rights Code provisions respecting employment discrimination on the basis of "disability" become important in determining the justification for termination and punitive damages. Jurisdictional difficulties, discussed in Ch.2, s.2(g): "Advocacy: Forum Considerations: HRC Complaint", can arise in such cases.
. Notice and Documentation
Employees taking family medical leave are required to give notice (there is no requirement that it be written, but its a good idea) of that intention to their employers either before taking the leave, or otherwise as soon as possible after beginning it [ESA s.50(3-4)].
The employer may require "evidence reasonable in the circumstances" in support of the leave [ESA s.50(7)]. Ideally this would be in written form, authored by some independent third party in a position to know the circumstances. Of course medical cases would ideally be authorized by a doctor.
. Employees Exempted from Emergency Leave Eligibility in Some Circumstances
The taking of emergency leave is barred to the following professional employees where "the exercise of the entitlement would constitute an act of professional misconduct or a dereliction of professional duty" [Reg 285/01, s.2-3]:- a duly qualified practitioner of,
- architecture,
- law,
- professional engineering,
- public accounting,
- surveying, or
- veterinary science;
- a duly registered practitioner under the Drugless Practitioners Act;
- a teacher as defined in the Teaching Profession Act;
- a registered practitioner of a health profession under Schedule 1 of the Regulated Health Professions Act, 1991, including a duly registered practioner of:
- chiropody,
- chiropractic,
- dentistry,
- massage therapy,
- medicine,
- optometry,
- pharmacy,
- physiotherapy, or
- psychology.
- students in training for any occupation mentioned above.
(f) Public Emergency Leave
If a public emergency is declared under the Emergency Management and Civil Protection Act (Ontario) [EMCPA s.7.0.1], the employee will not be performing their duties for that reason - AND any of the following reasons applies - then the employee is entitled to unpaid leave for that time [ESA s.50.1(1,5)]:- an EMCPA order applies to the employee;
- a Health Protection and Promotion Act order applies to the employee; or
- the employee "is needed to provide care or assistance to" any of the following [ESA s.50.1(8)]:
- their spouse;
- the employee's spouse;
- a parent, step-parent or foster parent of the employee or the employee's spouse;
- a child, step-child or foster child of the employee or the employee's spouse;
- a grandparent, step-grandparent, grandchild or step-grandchild of the employee or of 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.
Note that for purposes of these provisions [ESA s.45(1)]:- "'parent' includes a person with whom a child is placed for adoption and a person who is in a relationship of some permanence with a parent of a child and who intends to treat the child as his or her own, and "child" has a corresponding meaning"; and
- "spouses" includes two persons who are either married, entered in good faith into a void or voidable marriage, or who "live together in a conjugal relationship outside marriage."
The employee should notify the employer that they are taking - or have started to take - this leave as soon as possible [ESA s.50.1(2,3)], and the employer may require the employee to provide, in a timely fashion, "reasonable evidence" of the grounds justifying the leave (copies of any such orders or medical letters, as appropriate, should satisfy this requirement) [ESA s.50.1(4)].
(g) Reservist Leave
. Overview
Moved to action by the continued participation of Canadian troops in the US occupation of Afghanistan, the province moved in late 2007 to include reservist troops within its ESA leave regime. For purposes of these leave provisions, "reservist" means a member of the reserve force of the Canadian Forces referred to in subsection 15 (3) of the National Defence Act (Canada) [Act s.1(1) defns]. Those to whom these provisions apply, or their families, should know their status.
Note that these leave provisions as I describe them here make frequent references to additional terms and conditions that can be added by Regulations. At the date of writing no such Regulation provisions have yet been made.
. Commencement
Reservist leaves rights only apply to deployments commencing 03 December 2007 and afterwards, and where notice of intention to take the leave is given on or after that date [ESA s.50.2(12)].
. Terms of Reservist Leave
Reservists are entitled to unpaid leave from their employment if they are away from work either due to [ESA s.50.2(1)]:- being deployed to a Canadian Forces operation outside Canada;
This includes "participation, whether inside or outside Canada, in pre-deployment or post-deployment activities that are required ... in connection with" the foreign operation [ESA s.50.2(2)].
- deployed to a Canadian Forces operation inside Canada that is or will be providing assistance in dealing with an emergency or with its aftermath;
For this purpose, "emergency" means either [ESA s.50.2(11)]: (i) a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature, a disease or other health risk, an accident or an act whether intentional or otherwise, or
(ii) a situation in which a search and rescue operation takes place. or
- as otherwise prescribed by Regulation.
Unless another period is prescribed by Regulation, the leave may last as long as the above conditions apply [ESA s.50.2(4)].
. Notice and Evidence
Unless a specific notice period is prescribed by Regulation, employees intending to take reservist leave shall give the employer "reasonable" written notice of that intention, and of the date they intend it to commence [ESA s.50.2(5,10)]. If prior notice is not possible, the employee shall give this notice "as soon as possible after beginning it" [ESA s.50.2(6)].
The employer has the option of requiring the employee "to provide evidence that the employee is entitled to the leave." [ESA s.50.2(7)]. A copy of the deployment orders or reasonably similar document, given within a "reasonable" time should be adequate for this purposes, although other forms of proof and time of delivery may be prescribed by Regulation [ESA s.50.2(8)].
Similarly, unless a specific notice period is prescribed by Regulation, the employee must give the employer "reasonable" prior written notice of their intention to return to work [ESA s.50.2(9,10)].
. Exemptions
Note however that employees of less than six consecutive months (or such other time period as the Regulations may prescribe) employment duration (ie. length of employment), are excluded from these reservist leave provisions [ESA s.50.2(3)].
(g.1) Organ Donor Leave
. Overview
Employees of 13 weeks or more employment who have undergone, or will be undergoing, organ donor surgery (either giving or receiving) are entitled to unpaid 'organ donor leave' in accordance with the rules discussed in this section [ESA 49.2(3)]. For these purposes 'organ means all or part of a "kidney, liver, lung, pancreas, small bowel" and any other organ or tissue prescribed by the Regulations (at the date of writing no relevant Regulations have yet been made) [ESA 49.2(1)(2)].
For these purposes, the employer is entitled to require and promptly receive a written doctor's certificate "confirming that the employee has undergone or will undergo surgery for the purpose of organ donation" [ESA 49.2(4)(14)].
Organ donation leave entitlements are in addition to 'personal emergency leave' entitlements [see (e) above] [ESA 49.2(15)].
. Duration of Leave
The basic leave period is 13 weeks, though it is extendable more than once but only to a total of 13 additional weeks [ESA 49.2(5)(7)] if a doctor certifies that "the employee is not yet able to perform the duties of his or her position because of the organ donation and will not be able to do so for a specified time" [ESA 49.2(6)]. Such certificate shall be provided to the employee as soon as possible by the employee [ESA 49.2(14)].
. Commencement and Termination of Leave
The leave may commence either at the day of the surgery, or at an earlier date if so specified in the doctor's certificate [ESA 49.2(8)].
The leave ends either at the end of the 13 weeks or, if extended, either at the date of termination specified in the (most recent) doctor's certificate or - if no such termination is specified - then 26 weeks after the leave commenced [ESA 49.2(10)]. The employee may elect to end the leave early on giving the employer two weeks' written notice to that effect [ESA 49.2(11)].
Where possible, both the taking of the leave and any extensions to the leave should be preceded by the employee giving the employer two weeks' written notice [ESA 49.2(12)]. If such prior notice is not possible, then the employee must advise the employer in writing of the commencement or extension as soon as they can [ESA 49.2(13)].
(h) Leave and Vacation Entitlements
Vacation entitlements continue to accrue during periods of leave-taking [ESA s.33(2)].
Further, any contractual provisions that bar deferring the vacation entitlement - thus having the effect of causing forfeiture or reduction of the employee's vacation entitlement - are voided. Similarly, ESA provisions that require vacation time to be taken within 10 months after the end of the applicable vacation entitlement year (or "alternative" VEY), are superceded when the employee is on leave when the 10-month 'deadline' runs out. In both such cases the employee has the option of simply deferring the vacation time until the leave ends, or rescheduling it to a later date agreed between the employee and the employer [ESA s.51.1(1-2)].
Of course, the employee may alternatively opt to take their unused vacation time in the form of vacation pay [ESA s.51.1(3)].
(i) Enforcement of Leave Rights
. Overview
Enforcement of ESA "minimum standards" leave rights requires careful consideration of the available remedies. Firstly, these leave entitlements are rarely - if ever - enforceable by "wage" payments and as such the primary "employment standards officer" (ESO) wage order authority will not likely be applicable.
. ESO Compliance Orders
In some case leave rights may be resolved by "compliance orders" [ESA s.108], which are akin to civil injunction orders in that they either prohibit or require certain behaviours by employers. These remedies are discussed in Ch.7, s.4(d): "ESA Administrative Enforcement: Complaint Resolution Orders and Related Measures: Injunction Orders". Note importantly however that an ESO only has jurisdiction to make such orders when a person has "contravened a provision of this Act or the regulations", thus restricting the remedy to minimum standard leave contraventions, and not to general contractual leave entitlements.
. Reprisal-Type Remedies
Next note that contraventions of the ESA "minimum standards" leaves of absence provisions are subject to the special "reprisal"-type remedial provisions discussed in Ch.9, s.2(d): "Offences and Contraventions: Reprisal and Related Remedies: The s.104 Remedies". These include general compensation for losses akin to the concept of "damages" in a civil court, and as well a unique "reinstatement" of employment remedy which is not normally otherwise available (even in civil court).
Note once again however that these remedies are still restricted to the ESA minimum standard leave entitlements otherwise described in this section [s.2].
. Civil Courts
Remedies for contravention of contractual leave entitlements which provide a greater right than the ESA does would have to be advanced in civil court. Note however that the ESA's reprisal-related "reinstatement" remedy mentioned above is not available to the court [only to ESOs: ESA s.104(1)], and that court issuance of a similar injunctive-type order would be highly unusual under the common law.
In short, the civil courts are best suited for monetary compensation claims grounded on leave entitlements that are greater in benefit than those required by the ESA's "minimum standards". Otherwise the situation must be carefully assessed to determine which procedures and forums best offer remedies. See Ch.2: "Advocacy" generally on these complexities.
3. Other Employee Rights
(a) Posting and Delivery of Rights Information
The Minister must prepare, and employers must "conspicuously" post, a rights information poster in every workplace [ESA s.2]. The present acceptable version of this poster is the poster "What You Should Know About The Ontario Employment Standards Act?", version 2.0. [Reg 316/04].
What You Should Know About the Ontario Employment Standards Act
If the majority language in the workplace is other than English, the employer shall post in that language.
As of 20 May 2015, the employer is also required to give each then-present employee a copy of this poster within 30 days (from 20 May 2015), and to also give any revised versions thereafter as they are issued by the Ministry of Labour [ESA 2(5,8)]. These duties apply to the employer with respect to new employees, requiring that the posters be given within 30 days of the hiring [ESA 2(7)].
If the employee requests it in a different language the employer has a duty to inquire if the Ministry has such a translated version and to provide that version if available [ESA 2(6)].
(b) Lie Detectors
Employees have the right to refuse to take lie detectors tests requested by their employers. Further, even for an employer to ask or require that they take a lie detector test is a violation of their rights [ESA s.69]. These rules apply to applicants for employment as well, and to police officers and applicants to become police officers [ESA s.68 defns].
A "lie detector test" means any analysis, examination, interrogation or test directed at assessing the credibility of a person "by means of or in conjunction with a device, instrument or machine" [ESA s.68].
It is further prohibited for anyone to "directly or indirectly, require, request, enable or influence an employee to take a lie detector test", or to disclose to an employer the fact of or results of any previous lie detector tests [ESA s.70].
None of these provisions prevent an employee consensually participating in a lie detector test at the request of police in the course of a law enforcement investigation [ESA s.71].
Note that contravention of the "lie detector" provisions of the ESA attracts application of the special "reprisal-type" remedies discussed at Ch.9, s.2(d): "Offences and Contraventions: Reprisal and Related Remedies: The s.104 Remedies". In particular, contravention with respect to employment or police officer candidates may result in the (otherwise unprecedented) legal remedy of an "order to hire" [ESA s.104(2)].
|
