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New job-protected leaves introduced in Ontario

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On March 5, 2013, the Ontario government introduced new legislation which, if passed, would create three new job-protected leaves under the Employment Standards Act, 2000 (“ESA”). If these new leaves are added to the ESA, caregivers would be allowed to provide support to their loved ones without fear of being dismissed by their employer.

The new leaves proposed by the Employment Standards Amendment Act (Leaves to Help Families), 2013 are as follows:

  1. Family Caregiver Leave – up to 8 weeks of unpaid leave for employees to provide care and support to a family member with a serious medical condition.
  2. Critically Ill Child Care Leave – up to 37 weeks of unpaid leave to provide care to a critically ill child.
  3. Crime-Related Child Death and Disappearance Leave – up to 52 weeks of unpaid leave for parents of a missing child and up to 104 weeks of unpaid leave for parents of a child that has died as a result of a crime.

These new leaves would be in addition to the Family Medical Leave already in the ESA, which provides employees with leave in circumstances where a family member has a serious medical condition, with a significant risk of death occurring within 26 weeks. All of these leaves would exist in addition to an employee’s right to take other leaves provided for in the ESA.

A doctor’s note would be required for the Family Caregiver Leave and the Critically Ill Child Care Leave. Employees eligible for either Critically Ill Child Care Leave or Crime-Related Child Death and Disappearance Leave may also be entitled to federal Employment Insurance for the duration of their leave.

Ontario Minister of Labour, Yasir Naqvi, explained that “these proposed leaves are a matter of compassion, and the right thing to do for Ontario families.”

These proposed changes to the ESA come at the heel of judicial decisions on the extent to which employers are obligated to provide accommodation to employees with caregiver responsibilities. While the duty to accommodate may be more extensive and long-term than the leaves contemplated in the ESA, the latter might provide guidance, if not another option, for both employers and employees during a difficult time.

We will, therefore, continue to monitor the progress of these proposed changes to the ESA and report on any further developments.

Parisa Nikfarjam