The Ontario Government introduced a Bill on March 5, 2013 that, if passed, would amend the Employment Standards Act, 2000 to “provide unpaid job-protected leave for employees while they care for sick or injured loved ones or cope with the illness or loss of a child".
Bill 21, Employment Standards Amendment Act (Leaves to Help Families), 2013 would build upon the current leaves in the ESA and would introduce three (3) unpaid leaves.
The Minister of Labour noted in response to a question in the Legislature that:
Our government recognizes the challenges that hard-working Ontarians face when they must provide care for a loved one while also working full-time, and we believe that the last thing Ontarians should worry about when the health of their loved one hangs in the balance is the stress of work or the fear of losing their job. That’s why our government already provides Ontarians with a personal emergency leave for up to 10 days or a family medical leave for up to eight weeks to care for a family member at risk of death.
But we know that there is a gap for those hard-working Ontarians who are increasingly caring for their elderly family members with a chronic acute medical condition, not to mention other family members facing serious illnesses that do not necessarily pose a risk of death.I will be tabling this afternoon family caregiver legislation and I am proud that our government is following through on this commitment to Ontario’s families.
Family Caregiver Leave ("FCL")
This portion of Bill 21 is similar toBill 30, the Family Caregiver Leave Act (Employment Standards Amendment), 2012 that was refered to a Standing Committee on September 6, 2012 but died on the order paper when the Ontario Liberals proroged of the Legislature.
Where triggered, a FCL would provide the employee (caregiver) with up to 8 weeks of unpaid, job-protected leave to provide care and support to a family member with a serious medical condition.
The Bill provides as follows:
An employee is entitled to a leave of absence without pay to provide care or support to an individual described in subsection (4) if a qualified health practitioner issues a certificate stating that the individual has a serious medical condition.
It is not clear what would constitute a "serious medical condition" under this provision. The Family Leave provisions in current ESA qualify "serious medical condition" by going on to state that there must be "a significant risk of death occurring within a period of 26 weeks or such shorter period as may be prescribed".
The "individuals" to whom the FCL request must relate are:
- 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 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.
- Any individual prescribed as a family member for the purpose of this section.
To be eligible for the FCL the caregiver must submit a note from a "qualified health practitioner" (defined in the Bill, but also defined in the ESA under the Family Medical Leave provisions (section 49.1 to be specific).
The FCL is up to 8 weeks in each calendar year which are to be taken in entire weeks. The FCL is in adition to the current Family Medical Leave entitlements.
Critically Ill Child Care Leave
The Federal government recently introduced amendments to the Employment Insurance Act and the Canada Labour Code to provide benefits to and "protect the jobs of parents who take a leave of absence to care for a critically ill child" .
If passed, the new Critically Ill Child Care Leave and Crime-Related Child Death and Disappearance Leave would complement the newly extended federal income supports by providing eligible employees are provided with up to 37 weeks of job-protected leave to care for a critically ill child.
The Bill provides that:
An employee who has been employed by his or her employer for at least six consecutive months is entitled to a leave of absence without pay to provide care or support to a critically ill child of the employee if a qualified health practitioner issues a certificate that,
(a) states that the child is a critically ill child who requires the care or support of one or more parents; and
(b) sets out the period during which the child requires the care or support.
Crime-Related Child Death and Disappearance Leave
This leave provides, in the case of the death of a child:
An employee who has been employed by his or her employer for at least six consecutive months is entitled to a leave of absence without pay of up to 104 weeks if a child of the employee dies and it is probable, considering the circumstances, that the child died as a result of a crime.
The leave concerning the disapearance of the child provides:
An employee who has been employed by his or her employer for at least six consecutive months is entitled to a leave of absence without pay of up to 52 weeks if a child of the employee disappears and it is probable, considering the circumstances, that the child disappeared as a result of a crime.
The employee is not entitled to the leave 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."
The leave is to be taken in a single period.
An employer may require an employee who takes a leave under this section to provide evidence reasonable in the circumstances of the employee’s entitlement to the leave.
Bill 21 is at First Reading but it is something the government is committed to. Certainly more to come on this.