Leaves of Absence, Pt 1: Responsibilities During a Leave of Absence

In Ontario, there are certain circumstances when an employee can temporarily take a break from work, commonly referred to as a leave, and their job is protected. The various “leaves” are protected under the Employment Standards Act (“ESA”). As an employer or employee in Ontario, it is important to understand your responsibilities when it comes to leave of absence from the workplace to ensure compliance with Ontario’s employment standards and to maintain a positive work environment and relationship. 

This blog post is part one of a series related to Leaves of Absences. This particular post is a brief overview of the different entitled leaves available to employees, and considerations for both employees and employers when a leave of absence is being contemplated. 

TYPES OF LEAVES

There are several types of leaves of absence that employees may be entitled to under the ESA and other legislation. Each leave has its own set of parameters including how one is eligible to be entitled to such leave, if it is a paid or unpaid leave, and how much time is allowed under the ESA, such as the following:

Pregnancy and Parental Leave: Pregnant employees and new parents are entitled to job-protected leave for pregnancy, parental bonding, and the care of their newborn or adopted child.

Sick Leave: Employees are entitled to unpaid leave for personal illness, injury, or urgent matters involving certain family members.

Family Medical Leave: Employees may request a leave of absence to care for a family member with a serious medical condition.

Domestic or Sexual Violence Leave: Victims of domestic or sexual violence may take a leave of absence to seek medical attention, obtain counseling, relocate, or pursue legal action.

Bereavement Leave: Employees are entitled bereavement leave which covers the death of a spouse, parent (including stepparent or foster parent), child (including stepchild or foster child), sibling (including stepsibling), grandparent (including step-grandparent), grandchild (including step-grandchild), or spouse’s parent.

Crime-Related Child Disappearance Leave: Employees are entitled to a leave if it probable that a child’s disappearance was the result of a crime.

Organ Donor Leave: Organ donor leave is a type of leave of absence that allows employees to take time off work to donate an organ for transplantation purposes. This leave is intended to support individuals who wish to contribute to saving or improving the lives of others through organ donation.

Declared Emergencies and Infectious Disease Emergency Leave: If there is a declared emergency, an employee may have the right to take an emergency leave related to such emergency.  

When an employee decides to take a leave of absence, it is generally expected that they provide their employer with reasonable notice. The notice should be provided as soon as practically possible considering the circumstances and is best to follow up with any communication in writing. Here are some points to consider regarding notice for a leave of absence:

• Timeliness and check-in’s as circumstances evolve
• Specifics of Notice
• Communication Method
• Compliance, such as providing requested documentation
  

EMPLOYER CONSIDERATIONS

• Length of Leave: The length of leave an employee is entitled to will depend on the type of leave and the circumstances. For example, pregnancy and parental leave can be up to 18 months, while personal emergency leave is up to 10 days per calendar year. 
• Pay and Benefits During Leave: Employers are generally not required to pay employees during leaves of absence, although some types of leave may be eligible for employment insurance (EI) benefits. Employers are required to continue benefits such as health and dental insurance during certain types of leaves.
• Job Protection: In most cases, employees are entitled to job protection during leaves of absence. This means that employers cannot terminate or lay off employees because they have taken a leave of absence. Employers must also reinstate employees to their former position when they return from a leave of absence. 
• Documentation: Employers may require employees to provide documentation to support their need for a leave of absence. For example, an employee taking a personal emergency leave may be required to provide a doctor’s note. 
• Accommodation: Employers have a duty to accommodate employees who require a leave of absence due to a disability up unto undo hardship. This may include modifying work duties or providing alternative forms of work.

TAKEAWAY

In conclusion, both employers and employees have distinct responsibilities when it comes to managing a leave of absence in the workplace. It is important to have a clear understanding of the various types of leaves, the duration of the leave, compensation and benefits during the leave, job protection, documentation requirements, and the employer’s obligation to accommodate. By fulfilling these obligations, employers can ensure fair treatment of employees and uphold their legal responsibilities under the ESA.

Whether you are an employee or employer, our team of employment lawyers at Sultan Lawyers, are here to provide guidance on your rights and entitlements throughout the entire leave of absence process. Our dedicated team of advocates will represent your best interests when circumstances necessitate time away from work. Reach out to us via call us at 416-214-5111 or here. for a complimentary callback or a flat-rate consultation.