Employees require time away from work for many reasons, including vacation, a leave of absence, or jury duty. It is important for employees to be aware of their entitlements to time off, paid leave, and their rights upon their return to work.
The employment law team at Sultan Lawyers are knowledgeable about employee entitlements and can advise employees at any stage of a leave or other extended absence from work.
Eligible employees under the Employment Standards Act of Ontario are entitled to receive time away from work as vacation, as well as compensation during that time off (or “vacation pay”). It’s important to note that while the Employment Standards Act covers many employees in Ontario, there are several exemptions, including federal employees, independent contractors, and students employed through a school program.
The amount of paid vacation time an employee is entitled to under the Employment Standards Act is based on the length of their employment. Ordinarily, employees are required to work for one year before qualifying for vacation. Employees who have been at their job less than five years are entitled to at least two weeks’ vacation each year. Employees with five years of service or more are entitled to three weeks of vacation each year. These calculations can be made using the employee’s date of hire or may be prorated if the employer uses a vacation calendar year.
Unlike vacation time, vacation pay is earned from the date an employee starts work with their employer. Employees with less than five years of service are entitled to 4% of their wages earned during the period for which vacation is given. That entitlement increases to 6% at five years of service.
Vacation pay can be paid as a lump sum or included in an employee’s regular paycheque. The employee’s consent is required for vacation pay to be paid separately from regular wages. Additionally, at the end of employment, the employer must pay the employee any outstanding vacation pay.
Employees covered by the Ontario Employment Standards Act become eligible for sick leave after two weeks of employment. The minimum entitlement is three unpaid days off work per calendar year for illness, injury, or medical emergencies. These days are not prorated if the employee is hired part way through the year. Employers can consider a half-day absence as a full day of sick leave; however, sick days only count against one category of leave, even if they meet the requirements of additional types of leaves. Employers may require evidence of an employee’s entitlement to sick leave.
It is important to note that employees who fall under the Employment Standards Act cannot be penalized for taking sick leave. An employee on sick leave remains eligible to participate in any applicable benefit plans, and the employer must continue providing their contributions as well. Employees also continue to accrue seniority, service, and employment days throughout sick leave.
In addition to the sick leave provided by the Employment Standards Act, Ontario’s Human Rights Code requires employers to provide adequate unpaid leave for qualified employees under a protected human rights ground. Employers can only avoid this obligation if they show that accommodating the extra unpaid sick time would constitute undue hardship.
Bereavement leave under the Employment Standards Act is available to eligible employees who have suffered the death of the following family member(s):
The Ontario Human Rights Code may, in certain qualifying circumstances, provide time off to an employee who has lost a family member other than those listed above.
Under the Employment Standards Act, eligibility for bereavement leave begins after two weeks of employment. Eligible employees are entitled to receive two days of bereavement leave each calendar year. As with sick leave, employers may consider a half-day absence as a full day of leave.
Employers may require proof of an employee’s entitlement but are prohibited from penalizing employees for taking bereavement leave. Additional leave days may be available under the Human Rights Code to employees who meet the definition of a protected human rights ground unless the employer can show that further accommodation would create an undue hardship for the employer.
An employee on bereavement leave remains eligible to participate in any applicable benefit plans, and the employer must continue providing their contributions as well. As with sick leave, bereavement leave does not prevent employees from accruing seniority, service, and employment days throughout the leave.
The Ontario Juries Act requires employers to grant time off for employees who are summoned for jury duty. Employers are not required to pay employees for this absence. Upon their return to work, employees are entitled to the same position or a comparable one, with at least the same salary as before. They also continue to accrue seniority and benefits while away for jury duty.
It is an offence for an employer to punish or threaten to punish an employee, either directly or indirectly, for requiring time away from work to serve as a juror.
The Employment Standards Act of Ontario provides several other types of leave for eligible employees, including:
It is important to note that not all employees are covered by the Employment Standards Act. There are many prescribed exemptions to the Act, such as federal employees and independent contractors, who are not entitled to the Act’s benefits and may be governed by other employment laws.
At Sultan Lawyers, our team of employment lawyers can advise you on your rights and entitlements during any stage of a leave of absence. We are dedicated advocates who will represent your interests when your circumstances require you to take time away from work. Contact us online at mlahert@sultanlawyers.com or at 416-214-5111 for a consultation.
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