Ontario Government Proposes Amendment to the Employment Standards Act, 2000 to Provide for Family Caregiver Leave

January 10, 2012

On December 8, 2011 the Ontario Minister of Labour introduced legislation (Bill 30) that, if passed, would amend the Employment Standards Act, 2000 (the “ESA”) to provide unpaid, job-protected leave of up to eight (8) weeks per year to employees requiring time off work to provide care or support to a family member with a serious medical condition.  According to the Minister of Labour, the purpose of the legislation is to recognize the importance of family and to enable employees to provide care and support to their loved ones without fear of losing their job.

The proposed legislation would build upon and be in addition to the existing Family Medical Leave provisions of the ESA which currently allow for leave to provide care or support to certain individuals if the individual family member has a serious medical condition with a significant risk of death occurring within a period of twenty-six (26) weeks.  The Ontario government has made it clear that it will be calling upon the federal government to extend Employment Insurance to those who take advantage of Family Caregiver Leave, as it generally does for employees currently taking Family Medical Leave under the ESA.

To be eligible for the proposed new Family Caregiver Leave, an employee would be required to have a medical certificate from a qualified health practitioner stating that the employee’s family member has a serious medical condition.  If requested, the employee would then have to produce the medical certificate. The proposed new Family Caregiver Leave would apply to all employees, whether full-time, part-time, permanent or contract who are covered by the ESA.

If passed, caregivers would be eligible for the Family Caregiver Leave to care for:

  • Their 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’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.

Family Caregiver Leave would have to be taken in periods of entire weeks (a week is defined as seven (7) consecutive days beginning on Sunday and ending on Saturday).  In addition, an employee who wishes to take Family Caregiver Leave must advise his or her employer in writing that he or she will be doing so, and if the employee must begin the leave before advising the employer, the employee shall advise the employer as soon as possible after beginning the leave.

As with other leaves under the ESA, the seniority and length of service credits for employees on Family Caregiver Leave would continue to accumulate during the leave.  Employers providing certain types of benefit plans would have to continue to make their contributions during the leave if the employee continues to pay his or her contributions, if any.  Similarly, employers would be required to reinstate the employees returning from Family Caregiver Leave to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.

If this new Family Caregiver Leave legislation is passed, it would be beneficial for employers to review their current employment contracts, collective agreements, policies and practices to ensure that they are compliant with the new law. It would also be prudent to inform all managers and supervisors of this new development to ensure that they are aware of an employee’s rights with respect to Family Caregiver Leave and are thereby equipped to appropriately deal with such requests as they arise.

Miller Thomson LLP will keep you apprised of further developments in this area.

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