Family Medical Leave Now Law

HRinfodesk---Canadian Payroll and Employment Law, July 2004

On June 29, 2004, the Ontario Legislative Assembly gave Royal Assent to Bill 56, Employment Standards Amendment Act (Family Medical Leave), 2004 (Votes and Proceedings for June_29_2004). Effective immediately, employees in Ontario who need to support and care for a gravely ill family member can take up to eight unpaid weeks off work with job protection if a qualified health practitioner issues a medical certificate stating that the individual has a serious medical condition with a significant risk of death occurring within a 26-week period. These same employees may also be entitled to six weeks of employment insurance (EI) compassionate care benefits during the time of the leave.

The right to take time off work under the Family Medical leave provisions of the Employment Standards Act is not the same as the right to the payment of compassionate care benefits under the federal Employment Insurance Act. The employer has an obligation to provide the unpaid period of leave and the employee must apply with the Human Resources Skills and Development Canada (HRSDC) to obtain the compassionate care EI benefits he or she may be entitled to.

Employers should establish or review policies and procedures to ensure they reflect the new rules, including how and to whom employees must provide notice.

Family Medical Leave under Employment Standards

Eligibility

* All employees whether full-time or part-time, permanent or contract, who are covered by the Employment Standards Act are entitled to the Family Medical Leave. This includes employees of employers with fewer than 50 employees. It also includes probationary employees.

* The Act does not require employees to have worked a specified length of time in order to qualify for the leave or that the employer employs a specified number of employees in order for the employee to qualify for Family Medical leave.

* Family medical leave is in addition to emergency, maternity, and/or parental leave. An employee may be entitled to all the leaves. They are separate leaves and the right to each leave is independent of any right an employee may have to the other leave. An employee who qualifies for all the leaves would have full entitlement to each leave.

Entitlement

* Employees are entitled up to eight weeks of unpaid job-protected leave to support and care for a seriously ill family member with a risk of dying within a 26-week period.

* Care and support includes providing psychological or emotional support, arranging for care by a third party provider or directly providing or participating in the care of the family member

* The Act defines a family member, for the purpose of family medical leave, as

- a spouse, common law partners and same-sex partners (married or common law)
- a child of the employee
- a child of the employee's spouse
- a parent of the employee
- (child and parent includes persons in "step" or "foster" relationships);

The eight weeks of leave is to be shared if two or more employees want to take leave to care for the same family member.

Employees are entitled to an additional eight unpaid weeks of job-protected leave if the same family member is still gravely ill at the end of the 26-week period, if a second medical certificate is obtained.

Medical Requirement

* The employee is required to provide the employer with supporting medical certificate (by a qualified medical practitioner) confirming that a family member has a serious medical condition with a significant risk of death within 26 weeks. The Act defines a qualified health practitioner to mean a person who is qualified to practice medicine under the laws of the jurisdiction in which care or treatment is provided to the individual. The Human Resources Skills and Development Canada (HRSDC) has prepared and published an online form to serve as a medical certificate that the qualified health practitioner must complete if the employee is asking for compassionate care EI benefits. This form is a good example of what information should be provided to the employer and, is the form that must be used when your employees apply for the Compassionate Care EI benefit. The form can be accessed here.

* The leave may commence without the employee having in hand the medical certificate especially if the ill family member does not reside in Canada. The Ontario Ministry of Labour has specified that an employee might commence the leave before obtaining the medical certificate, however, the right to the leave is dependent upon the issuance of the medical certificate and the leave must be completed within the 26-week period specified in that certificate. If the employee could not subsequently produce the certificate and/or if the leave were not completed within the 26-week period, the employee would not have had a right to the Family Medical leave under the Act and would not be entitled to any of the protections afforded to employees on such a leave.

* If the employee cannot obtain a certificate from a qualified health practitioner, they are not entitled to the leave and will not have job protection if they do not report for work. The employer may voluntarily agree to provide the employee with time off work in such a case, but an employer is not required to so under the Act.

* An employer is entitled to ask an employee for a copy of the certificate of the qualified health practitioner to provide proof that he or she is eligible for a Family Medical leave. The employee is required to provide that certificate as soon as possible after the employer requests.

Notice Requirement

* The employee is required to provide the employer with written notice of his or her intention of taking the leave. If an employee has to begin leave before notifying the employer, he/she would have to inform the employer as soon as possible. If requested by the employer, the employee shall provide the employer with a copy of the medical certificate;

Start and End of Leave Requirement

* The earliest an employee may start the leave is the first day of the week in which the 26-week period identified on the medical certificate begins.

* The leave ends on the day the family member dies or the last day of the week in which the leave period ends (which is the date referred to in the medical certificate or notice to employer, as long a the duration is no more than eight weeks within a 26-week period);

* Employee can only take the leave in periods of entire weeks and does not have to take the eight weeks consecutively. A week is defined as a period of seven consecutive days starting on a Sunday and ending on a Saturday.

Entitlement to Seniority, Benefits Plan Other Advantages During the Leave Period

* Employees earn seniority and credit for length of service and length of employment while on leave, just as if they had stayed at work. While an employee is on leave, the employer would have to continue to pay its share of the premiums to certain benefit plans (i.e., pension plans, life and extended health insurance plans, accidental death plans and dental plans) that were offered before the leave.

* Employees accrue vacation time and pay while on leave.

Prohibition

Employers are prohibited from taking reprisals against employees taking the leave, and enforcement would be carried out by Ministry of Labour enforcement officers.

Additional Resources

The Employment Standards Branch of the Ontario Ministry of Labour has prepared a fact sheet that provides information and examples on the application of the Family Medical Leave (in FAQ format). The Fact Sheet can be accessed at Employment Standards Fact Sheet - Family Medical Leave | Ontario Ministry of Labour.

For more information on the Family Medical Leave provisions, go to Bill 56.

Compassionate Care EI Benefits under the Employment Insurance Act

Entitlement

Eligible employees are entitled to EI benefits when they take advantage of an unpaid Family Medical Leave in Ontario. Employers are required to provide employees with a Record of Employment (ROE) so that they can apply for the EI compassionate care benefits. Employment Insurance (EI) and the Record of Employment on the Web (ROE Web).

For more information on entitlements and requirements, read the following article: Compassionate Care EI Benefits---A Reminder.

Employer SUB Plans

Payments from an employer’s compassionate care leave plan will be treated the same way as benefits from a sickness, maternity or parental leave plan. Employers are allowed to include compassionate care benefit payments in a Supplementary Unemployment Benefit (SUB) plan, and payments from such plans will not be deducted from EI benefits payable to the employee.

The payment of compassionate care benefits from plans that are substantially similar to SUB plans will not be treated as earnings for EI benefit purposes, which mirrors the current treatment of maternity and parental benefit payments from such plans.

Payments under a wage-loss indemnity plan related to compassionate care benefits will not be considered earnings during the waiting period.

Additional Resources

For more information on HRSDC EI Compassionate Care EI Benefits, go to Employment Insurance (EI) Compassionate Care Benefits.

For more information on Employer Sub Plans, go to Employment Insurance (EI) supplements to maternity, parental and compassionate care benefits.

By Yosie Saint-Cyr, Editor at HRinfodesk

Published on HRinfodesk---Canadian Payroll and Employment Law

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