Changes Are Coming to Employment Law in Ontario: Part 3
In my last two blog posts I commented on some of the changes coming to employment law in Ontario. The bill has now passed third reading, and is waiting for Royal Assent. Essentially, this is a formality and we should consider the law as passed. This final post looks at some of the expansion of leave of absence policies. Employers should review their workplace policies and be ready to implement the required changes. I would be happy to assist you in reviewing your workplace policies. Please contact me for a free initial consultation.
Among the many changes are:
Death of a Child Leave & Crime-Related Child Disappearance Leave.
The law now allows a 104 week unpaid leave if an employee’s child passes away. Previously a 52 week unpaid leave was available, and only if a child died a crime-related death.
The other change expands an employee’s right to take an unpaid leave from 52 weeks to 104 week if their child disappears for criminal-related reasons.
Both of these apply once an employee has been employed for at least 6 months. An employee does not qualify if he/she is charged with a crime in relation to the child’s death or disappearance. These amendments seem sensible in light of tragic circumstances. While an employer may be somewhat inconvenienced by having to maintain or create a position for an employee coming back from a 2 year leave, I would be hard pressed to find an employer who would be so inconsiderate as to balk at reinstating such an employee, especially a long term one (at least 6 months). This kind of leave does not seem to apply to cases where children are taken away by the other parent in a custody/access dispute.
Family Medical Leave.
An employee can take a leave of absence if a family member is seriously ill and a physician thinks that they are at serious risk of dying. There are two expansions to this type of leave.
- The new law expands the maximum length of the leave from 8 weeks to 28 weeks.
- It expands the list of eligible family members from spouse, parent, and child to include:
- 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 child who is under legal guardianship of the employee or the employee’s spouse.
- A brother, step-brother, sister or step-sister of the employee.
- A grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse.
- A brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee.
- A son-in-law or daughter-in-law of the employee or the employee’s spouse.
- An uncle or aunt of the employee or the employee’s spouse.
- A nephew or niece of the employee or the employee’s spouse.
- The spouse of the employee’s grandchild, uncle, aunt, nephew or niece.
- A person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met.
This kind of expansion recognizes that often one’s true family is not necessarily the immediate nuclear family. Its interesting that there is no minimum employment tenure requirement. However, as it is an unpaid leave, its unlikely to be abused.
Critical Illness Leave.
This allows an employee to take a leave of up to 37 weeks to care for a critically ill child where there is an injury or an onset of an illness. It is now expanded to apply to the same adults covered by family medical leave, although in those cases, the length of the leave is 17 weeks. Also an unpaid leave.
Parental Leave.
This applies to employees who experience the birth of a child. It is expanded from 35 weeks if the employee also took pregnancy leave to 61 weeks. Also expanded from 37 weeks if the employee did not take pregnancy leave to 63 weeks. These remain unpaid leaves. That being said, Employment Insurance provides compensation if that employee has worked the requisite number of hours before the leave.
Domestic or Sexual Violence Leave.
This is a new type of leave where an employee can take this type of leave if the employee or their child suffers, or is threatened with, domestic or sexual violence. An employee is eligible if they have worked for an employer for at least 13 weeks They can take up to 10 days and 15 weeks for the following reasons:
- To seek medical attention for the employee or the child of the employee in respect of a physical or psychological injury or disability caused by the domestic or sexual violence.
- To obtain services from a victim services organization for the employee or the child of the employee.
- To obtain psychological or other professional counselling for the employee or the child of the employee.
- To relocate temporarily or permanently.
- To seek legal or law enforcement assistance, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic or sexual violence.
The first 5 days of this kind of leave are paid. I understand the need for the leave, but not why the first 5 days should be paid. In my opinion, the financial burden should be born by the person causing or threatening the violence, not the employer. At the very least, there should be a method for the employer to recover such amounts from the perpetrator, perhaps from victim surcharge penalties which are routinely charged in criminal matters.
Paid Emergency Leave.
This is now available to all employees, and not just those working in places where there are 50+ employees. Employees continue to be entitled to 10 such days per year, however, the first 2 days are now paid. Employers can ask for evidence supporting the reason for the emergency leave. However, they can’t ask for a doctor’s note. Essentially, an employee only needs to say that they’re sick, and they are entitled to 2 free days of pay. This is ripe for abuse.
The rate of pay is the employee’s typical rate of pay, and is not bumped up by overtime pay, shift premium pay, or holiday premium pay. If the employee is on commission, the pay is what the employee earns on average (or minimum wage, whichever is higher). I take issue with this because the whole point of having an employee paid on commission is that both the employer and employee only get paid if the employee sells. This amendment recreates the employer/employee relationship for those 2 days, unfairly in my opinion.
You can view the Ministry of Labour’s press release from May 30, 2017 here, although it is a bit dated as there have been subsequent debates which have lead to amendments. If you’re into that sort of thing, you can find the amendments here.
Disclaimer: None of the foregoing should be considered legal advice. If you would like legal advice on anything in this post, contact me here.