When do you give employees time off?

One of the more monumental-seeming tasks for a business owner is learning how to deal with employees. In Ontario, most workers are protected by law – mainly the Employment Standards Act, or ESA for short. The ESA sets out the bare minimum for workers’ rights in the Province, including minimum wage, working hours, termination & severance pay, and time off. It’s extremely important to follow those rules, as the consequences for failing to do so can be dire.

In this article, I’m going to talk about the time off part of the equation – namely, when the law requires you to grant your employees unpaid leave, and under what conditions. A few new categories were created last fall, so it’s a good refresher. It’s important to have an understanding of why and when employees can take time off so that you can build leave into your HR policy and business planning.

Not all workers are protected by the ESA, and certain parts of the law don’t apply to people in certain professions. For instance, unpaid internships are illegal in Ontario, unless you’re a professional student like in law or medicine. In that case, you can work ‘em like rented mules and pay them nothing… ever wonder why we lawyers are a humourless lot?

Vacation

Employees who are protected by the ESA are entitled to a minimum of two weeks of vacation time per calendar year. Those two weeks must be paid with vacation pay, which is a minimum of 4% of the employee’s gross wages actually earned in that 12 month period. If you’ve granted more vacation time in the employment contract, then you have to honour that amount.

Entitlement to vacation is not reduced by layoff, illness, or leaves of absence.

Unpaid Leave of Absence

Workers who are protected by the ESA, whether part or full time, permanent or temporary, may have the right to take unpaid leave for the following reasons:

  • pregnancy and parental,
  • personal emergency,
  • family caregiver,
  • family medical,
  • critically ill child care,
  • organ donor,
  • crime-related child death or disappearance, and
  • deployment as a military reservist.

An employee may be entitled to more than one of these leaves for the same event. Each leave is separate, and taking one doesn’t affect their ability to take any of the others.

Pregnancy and Parental Leave

Pregnancy leave is up to 17 weeks of job-protected, unpaid time off work. The worker must have started employment at least 13 weeks before the baby’s due date.  The employee is eligible to receive employment insurance during this leave.

Parental leave may be taken by any new parent – birth, adopting, or by relationship – once a child is born or comes into their care. Birth mothers may take up to 35 weeks of parental leave, usually dovetailing in with their pregnancy leave for a total of 52 weeks. Birth mothers who do not take pregnancy leave, and all other new parents can take up to 37 weeks of parental leave, starting within a year of the child coming into their care. Parents may, but don’t have to, take their leave at the same time as the other parent.

To be eligible, the worker must have worked for you for at least 13 weeks before the baby came into their care, and must give you at least two weeks’ notice before starting leave.

Personal Emergency Leave

Personal emergency leave is unpaid, job-protected time off work for up to 10 days per calendar year. It’s only available to employees of companies who have 50 or more employees.

This leave may be taken for illness, injury, medical emergency, or related matter of the employee, their immediate family member, or dependent. The employee should inform you as soon as possible – whether that’s before or after they’ve begun the leave.

The 10 days do not have to be taken consecutively. Part days can be counted as a full day.

Family Caregiver Leave

Family caregiver leave is unpaid, job-protected time off work to care for family members or dependent relatives who have a serious medical condition. A “serious medical condition” is evidenced by a medical certificate issued by a physician, registered nurse, or psychologist. The certificate may have listed on it a period during which the condition is “serious”, or if no time frame is indicated, it’s valid until the endof the calendar year. You may request a copy of the certificate from the employee.

Employees may take up to 8 weeks per calendar year, per family member requiring care. The weeks do not have to be taken consecutively, but taking any one day off in a particular weeks counts as having taken the entire week off.

The employee should inform you as soon as possible – whether that’s before or after they’ve begun the leave.

Family Medical Leave

Family medical leave is unpaid, job-protected time off work to care for family, extended family, or people who are “like family”, who have a serious medical condition with a significant risk of dying within 26 weeks.

A person who is qualified to practice medicine must issue a certificate stating that the individual has a serious medical condition with a significant risk of death within 26 weeks. The employee must provide you with a copy of the certificate. If the person is “like family”, you may request a copy of a “Compassionate Care Benefits Attestation” form

Family medical leave is for up to eight weeks in a 26-week period with respect to each person being cared for. If other people are taking leave to care for the same person, the eight weeks must be shared. The eight weeks of family medical leave do not have to be taken consecutively, but taking any day in a week counts as using up one week.

Again, the employee should inform you as soon as possible – whether that’s before or after they’ve begun the leave.

Critically Ill Child Care Leave

Critically ill child care leave is unpaid, job-protected time off work to provide care or support to a critically ill child. The employee must work for you for at least six months before they’re eligible to take this leave.

A critically ill child is someone:

  • who is under 18 years of age,
  • under the employee’s legal guardianship, and
  • whose baseline state of health has significantly changed and whose life is at risk as a result of an illness or injury.

A physician, RN, or psychologist must issue a certificate stating that the child is critically ill, requires the care of one or more parents, and sets out the time period of care. You may request a copy of the certificate.

The employee must give you written notice that they’ll be taking the leave, and provide a plan in writing setting out the weeks they’ll be taking off. Ideally this is done before the leave starts, but can be done after. The employee must give you reasonable notice before changing the dates in the plan.

Critically ill child care leave can be up to 37 weeks in a calendar year. If the child remains critically ill at the end of the year, the employee may be eligible for additional leaves. The weeks need not be taken consecutively, but taking one day off in a week uses up the entire week of leave.

Organ Donor Leave

Organ donor leave is unpaid, job-protected leave for the purpose of undergoing surgery to donate a kidney, liver, lung, pancreas, or small intestine to a person. Generally, organ donor leave begins on the date of the surgery, but it may begin earlier if specified in a medical certificate.

The leave is for 13 weeks, with the possibility of extension for up to an additional 13 weeks if the employee is not yet able to perform their duties. A medical certificate is required for an extension. If possible, the employee must provide two weeks’ written notice before beginning or extending the leave.

Crime-Related Child Death or Disappearance Leave

Leave is available to employees whose child dies or disappears where it is probable that it resulted from a crime. The employee must have worked for you for at least six months to be eligible for the leave. If it is probable that the child was a party to the crime, the employee is not eligible for the leave.

An employee may take up to 104 weeks after the death of a child, and up to 52 weeks after the disappearance of a child. The employee must inform you in writing that they will take this leave, and provide a written plan indicating the weeks in which the leave will be taken. In most cases, an employee must take the leave in a single period.

Reservist Leave

Military reservists, those handsome devils, who are deployed on an international or domestic operation to assist with an emergency or its aftermath are entitled to unpaid leave for the duration of the operation. For international operations, the leave includes pre- and post-deployment activities required by the military.

The employee must have worked for you for at least six months, and must give reasonable advance notice in writing of the deployment dates when possible.

General Points

  • Leave doesn’t affect the employee accumulating seniority or length of service.
  • You must continue to pay employer contributions to pension, life & health insurance, accidental death insurance, and dental plans. If a benefit plan requires both employer and employee contributions, and the employee notifies you in writing that they will not be making their payments, then you don’t have to pay either.
  • The employee is entitled to come back to the same position they held before their leave, if it still exists, or to a comparable position if it does not.

Simple, right?

Mike Hook
Intrepid Lawyer
http://intrepidlaw.ca
@MikeHookLaw

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