Canadian Employment Law Today

October 01, 2014

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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4 Canadian HR Reporter, a Thomson Reuters business 2014 Navigating Ontario's new leaves of absence Three new types of job-protected leave brings total to 10 in Ontario; more help for employees means more work for employers managing absenteeism By PAmELA ChAN m OsT employers familiar with Ontario's Employment Stan- dards Act, 2000 (ESA) under- stand their obligation to provide job- protected leaves of absence to employees under certain circumstances. e legisla- tive amendments to the ESA that are set to take eff ect on Oct. 29, 2014, will require employers to become familiar with three new job-protected leaves — an increase that can add additional organizational and administrative complexity. Currently, the ESA provides the follow- ing seven unpaid job-protected leaves: pregnancy, parental, family medical, or- gan donor, personal emergency, emer- gency and declared emergencies, and reservist leave. With the intention of as- sisting Ontario families, the following un- paid job-protected leaves will be added to the ESA: family caregiver leave, critically ill childcare leave and crime-related child death or disappearance leave. e new leaves will involve various eli- gibility requirements. Family caregiver leave • Employees, regardless of length of service, are entitled to up to eight weeks of unpaid leave per calendar year to provide care and support to a family member with a serious medical condi- tion diagnosed by a qualifi ed health practitioner. • Qualifying family members include: spouse, child, parent, grandchild, sib- ling, or other relative who is dependent on the employee for care or assistance. • e eight-week entitlement can be applied to care for each qualifying family member. • Employees are not required to take this leave in complete weeks. • is leave is to be distinguished from the family medical leave, where an em- ployee may take unpaid time off to care for a family member who has a serious medical condition likely to lead to death. Critically ill childcare leave • Employees employed for at least six con- secutive months are entitled to take an unpaid leave to provide care or support for a critically ill child under the age of 18, if a qualifi ed health practitioner is- sues a certifi cate stating that the child requires the care of a parent and sets out the required period of care. • A critically ill child is defi ned as "a child whose baseline state of health has signifi - cantly changed and whose life is at risk as a result of an illness or injury." • Employees are not required to take this leave in complete weeks. • While an employee is entitled to up to 37 weeks for this leave, the employee is only allowed to take the leave for the period specifi ed in the certifi cate if the period is less than 37 weeks. Crime-related child death and disappearance leave • Employees with at least six consecu- tive months of service will be entitled to up to 104 weeks of unpaid leave if their child — under 18 years of age — dies, and the likely cause of death is related to the commission of a crime. • Employees with at least six consecutive months of service are also entitled to 52 weeks of unpaid leave if their child — un- der 18 years of age — goes missing, and the likely cause of the disappearance is related to the commission of a crime. • Generally, employees must take this leave in complete weeks. • ere is no entitlement to this leave if the employee is charged with the crime or the child is a probable party to the crime. Similar to the existing job-protected leaves under the ESA, employees on these new leaves have certain rights. Specifi - cally, employers must count the time on leave as time served during employment; employers are required to continue mak- ing contributions to existing benefi t plans including pension, life insurance and ex- tended health and dental plans; and em- ployees have a right to be reinstated to their pre-leave position, if it still exists — or a comparable position — at the same rate of pay before the leave or the changed rate, if higher. While the intention to help families by implementing these new leaves is virtu- ous, from an employer's perspective, any leave of absence can become a minefi eld when managing attendance and absentee- ism. With the total number of job-protect- ed leaves under the ESA soon to be 10, all with varying entitlements and eligibility criteria, employers need to carefully navi- gate these leaves in order to avoid expo- sures, including to reprisal and human rights complaints. Tips for managing leaves of absence ere are a range of strategies organiza- tions can employ when navigating job- protected leaves of absence. To minimize the complexity and legal liability, here are some tips and strategies: manage with care. Employers need to be careful of reprisal complaints when con- sidering any action against an employee that is related to the request or use of a job-protected leave —namely, disciplin- ing or terminating an employee for taking a job-protected leave. If employers have an attendance management program, any attendance-related sanctions under these programs should not be applied to From an employer's perspective, any leave of absence can become a minefi eld when managing attendance and absenteeism. CasE in point: EMPLOYMENT STANDARDS Across Canada, legislative changes are increasing the opportunities for employees to take unpaid leaves while ensuring their jobs will be waiting for them when they come back. Ontario in particular has been making it easier for workers to take time off, and the province will soon add several more reasons workers can take a leave from the workplace with the ability to return to work for the same employer. Here's a look at the new leaves that have been added to Ontario's list and strategies employers can use to manage the increasingly complex landscape of job-protected leaves of absence. BACKGROUND

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