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Job Protection when Family Members are Sick or Terminally Ill

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Job Protection when Family Members are Sick or Terminally Ill

By:

Posted March 22, 2013

Have you ever wondered what would happen to your job if a family member got sick and needed you to care for them?

What Protections Are Available Now if a Family Member Gets Sick: Family Medical Leave?

Currently, if a family member is terminally ill an employee, whether full time, part time or under a term contract is entitled, under section 49.1 of the Employment Standards Act, 2000  (“ESA”) to eight weeks of job-protected unpaid leave.  This is called Family Medical Leave.   In order to qualify an employee needs to provide a doctor’s letter which provides that there is a significant risk of death to a family member occurring within a period of 26 weeks.  An employee who takes Family Medical Leave is also eligible to apply for up to six weeks of Compassionate Care Benefits under the Federal Employment Insurance (EI) Act.

Ten days of unpaid job protected personal emergency leave is also available under section 50 of the ESA to employees because of personal illness, injury or medical illness of the employee or their family (broadly defined) but this is only available to employees who work in an organization with 50 employees or more.  While some employers have paid benefit plans for sickness, bereavement and other leaves of absence, this is not required by the ESA.

The New Protections are being proposed:  Leaves to Help Families – Bill 21

The Ontario Government is once again proposing to add additional unpaid job-protected leave for caregivers.  (An earlier version of this Bill was previously introduced as Bill 30 but did not pass third reading before the former government was prorogued).

The amendment to s. 49.3 of the ESA would create family caregiver leave and allow an employee up to eight weeks of unpaid leave to care for a family member who has a serious medical condition. To qualify a medical certificate would still be required but it would only need to confirm that the medical condition was serious.

Other amendments include those to sections 49.4 and 49.5 which create critically ill child care leave and crime-related child death or disappearance leave respectively.

It is not yet clear whether people who take advantage of these new forms of leave would be entitled to Employment Insurance benefits.  In the event that EI is not available it raises the question: how many people would be able to afford to take advantage of 8 weeks unpaid leave?

As it stands, Bill 21 will require that people who take this leave would have to take the leave a week at a time.  This has been the source of some debate in the legislative assembly.

From an employer’s perspective this kind of leave may present its own set of challenges, particularly for smaller and medium sized businesses who may find the impact of an employee’s eight week absence significant, both economically and practically. Family Caregiver Leave may prove to be particularly challenging for employers because employees will be able to take up to 8 weeks leave for each person who qualifies as a family member under the ESA.  The definition of family member includes spouses, parents, children, siblings, grandparents and grandchildren, dependent relatives and other prescribed people.

Bill 21 which amends the Employment Standards Act is currently in its second reading.

This blog post was written by Colleen Hoey, a Partner in the Employment team.  She can be reached at 613-369-0366 or at Colleen.Hoey@mannlawyers.com.

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