Part XIV - Leaves of absence

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Leaves overview

The purpose of the leaves of absence provisions in Part XIV is to provide qualified employees with the right to take job protected leaves. The intent of each leave is discussed below.

Pregnancy and Parental Leave

The Employment Standards Amendment Act (Pregnancy & Parental Leave), 1990, SO 1990, c 26 amended the former Employment Standards Act with the intention of improving the rights and protections already afforded to pregnant employees, and to establish a leave for working parents. The provision of a parental leave generally allows parents to spend time with a newborn or newly adopted child and was also intended to enable employees to take advantage of the new parental benefit under the former federal Unemployment Insurance Act, RSC 1985, c U-1, effective November 18, 1990 and repealed on July 1, 1996. Similarly, the longer parental leave provided by the ESA 2000 in December 2000 was intended to enable employees to take advantage of the extended parental benefits made available in December 2000 under the federal Employment Insurance Act, SC 1996, c 23. A further amendment to the ESA 2000 to support an extension in the time period over which parental EI benefits could be accessed was made effective December 3, 2017 with the Fair Workplaces, Better Jobs Act, 2017.

The 1990 amendments were drafted with the intention that qualified employees who availed themselves of the right to take pregnancy leave and parental leave would not be disadvantaged for doing so. As a result, employees on pregnancy or parental leave now have a right to be reinstated to the same position they held prior to going on leave. It is only if that position no longer exists that the employer can reinstate the employee to a comparable position. Under previous pregnancy leave provisions employers could, at their option, reinstate employees who took a leave to the employee's own position or to a comparable one. Employees are also to be reinstated at the greater of the wage rate they were earning prior to going on leave or the rate they would have been earning had they not taken the leave.

Employees are also entitled to continue to participate in certain benefit plans while on leave. The employer is required to continue paying the employer contributions and the employee continues to pay the employee portion of the premiums due unless the employee gives the employer written notice that they do not intend to pay the employee's contributions. In addition, seniority, length of service and length of employment continue to accrue while the employee is on leave.

Sick Leave

The sick leave provisions provide employees who have been employed for at least two consecutive weeks with the right to take up to three days of unpaid leave from work each calendar year because of a personal illness, injury or medical emergency. The sick leave provisions came into force on January 1, 2019 as a result of an amendment to the ESA 2000 by the Making Ontario Open for Business Act, 2018.

Family Responsibility Leave

The family responsibility leave provisions provide employees who have been employed for at least two consecutive weeks with the right to take up to three days of unpaid leave from work each calendar year because of the illness, injury, medical emergency or urgent matter of certain relatives. The family responsibility leave provisions came into force on January 1, 2019 as a result of an amendment to the ESA 2000 by the Making Ontario Open for Business Act, 2018.

Bereavement Leave

The bereavement leave provisions provide employees who have been employed for at least two consecutive weeks with the right to take up to two days of unpaid leave from work each calendar year because of the death of certain relatives. The bereavement leave provisions came into force on January 1, 2019 as a result of an amendment to the ESA 2000 by the Making Ontario Open for Business Act, 2018.

Emergency Leave: Declared Emergencies and Infectious Disease Emergencies

The declared emergency leave provisions provide employees with the right to an unpaid leave of absence if the employee will not be performing the duties of the employee’s position because of an emergency declared by the Lieutenant Governor in Council or the Premier and if one of certain other eligibility criteria is met.

The infectious disease emergency leave provisions provide employees with the right to a leave of absence if the employee will not be performing the duties of the employee’s position because of certain specified reasons related to a designated infectious disease. The diseases that have been designated as infectious diseases are set out in O. Reg. 228/20. From April 19, 2021 to March 31, 2023, eligible employees are entitled to up to three paid days of infectious disease emergency leave in certain circumstances. Otherwise, the leave is unpaid. (Note that paid infectious disease emergency leave was initially available until September 25, 2021. It was extended to December 31, 2021, July 31, 2022 and then was further extended to March 31, 2023.)

Reservist Leave

The reservist leave provisions provide employees who are reservists and who have been employed for at least three consecutive months with the right to unpaid leave from work where the employee will not be performing the duties of the employee’s position because of a deployment to a Canadian Forces operations outside of Canada, a deployment to a Canadian Forces operation inside Canada that is or will be providing assistance in dealing with an emergency or with its aftermath, or because the employee is participating in Canadian Forces military skills training.

Family Medical Leave

The family medical leave provisions are intended to provide employees with the right to take up to 28 weeks of unpaid leave from work to provide care or support to certain family members who have a serious medical condition and are at significant risk of dying within a period of 26 weeks without penalty. The provision of a family medical leave was also intended to enable employees to take advantage of compassionate care benefits made available under the federal Employment Insurance Act, effective January 4, 2004 and expanded from 6 to 26 weeks of benefits on January 3, 2016 (although the provisions giving qualified employees the right to family medical leave under the ESA 2000 did not come into force until June 29, 2004). O. Reg. 476/06, filed on October 6, 2006 expanded the list of persons in respect of whom the leave could be taken.

Family Caregiver Leave

The family caregiver leave provisions are intended to provide employees with the right to take unpaid time off work to provide care or support to specified family members who have a serious medical condition, even if the family member is not at significant risk of death within a period of 26 weeks, which is a qualifying criterion for family medical leave. Employees are entitled to up to eight weeks of unpaid leave each year with respect to each specified family member.

Critical Illness Leave

The critical illness leave provisions are intended to provide employees who have been employed by their employer for at least six months with the right to take unpaid time off work to provide care or support to a critically ill minor child or adult who is a family member of the employee. Employees are generally entitled to up to 37 weeks of unpaid leave in relation to a minor child, and 17 weeks in relation to an adult, to be taken in a 52-week period (and may requalify for subsequent 37 or 17 weeks of leave in subsequent 52-week periods). The provision of this leave was also intended to enable employees to avail themselves of federal Employment Insurance benefits for providing care or support to a critically ill minor child or adult who is a family member of the employee.

Child Death Leave

The child death leave provisions are intended to provide employees who have been employed by their employer for at least six months with the right to take unpaid time off work if a child of the employee dies. The leave entitlement is up to 104 weeks of leave. It is required that the leave be taken in a single period. If an employee is charged with a crime in relation to the death of the child or if the child was a party to a crime in relation to their death, there is no entitlement.

Crime-Related Child Disappearance Leave

The crime-related child disappearance leave provisions are intended to provide employees who have been employed by their employer for at least six months with the right to take unpaid time off work if a child of the employee disappears as a probable result of a crime. The leave entitlement is up to 104 weeks of leave. The leave must be taken in a single period. The provision of a crime-related child disappearance leave was also intended to enable employees to apply for a federal income support grant for parents of missing children that became available on January 1, 2013 and that requires that the parent be on leave or have been on leave from work.

Organ Donor Leave

The organ donor leave provisions are intended to provide employees who have been employed by their employer for at least 13 weeks and who undergo surgery for the purpose of donating all or part of certain organs to other persons, with the right to take up to 13 weeks of job-protected, unpaid leave from work. The leave may be extended for medical reasons for a further period of up to 13 weeks.

Domestic or Sexual Violence Leave

The domestic or sexual violence leave provisions are intended to provide employees who have been employed for at least 13 weeks with two separate allotments of 10 days and 15 weeks of leave within each calendar year if the employee or the employee’s child has experienced or been threatened with domestic or sexual violence. The leave must be taken for specific purposes: to seek medical attention, to access professional counselling, to relocate temporarily or permanently, to seek law enforcement and legal assistance, and to access victim services. The first five days of leave are to be paid; the balance of the leave taken within a calendar year is unpaid.

Section 45 – Definitions

History of the defined terms

The Employment Standards Act, 2000 introduced new definitions of the terms “same-sex partner” and “spouse” in September 2001, at the same time the personal emergency leave provisions, which referenced those terms, were introduced. At the time, same-sex partner was defined to mean unmarried same-sex couples, and spouse was defined to mean unmarried or married opposite-sex couples. After the Ontario Court of Appeal decision in Halpern v Canada (Attorney General), 2003 CanLII 26403 (ON CA), in which the Court ruled that the exclusion of same-sex marriages from the common-law definition of marriage was unconstitutional, the Program read the definition of spouse as if it included married same-sex couples. On June 29, 2004, the Employment Standards Amendment Act (Family Medical Leave), 2004, SO 2004, c 15 amended the ESA 2000 to reflect the Halpern v Canada decision. It repealed the same-sex partner definition, removed references in the personal emergency leave context to same-sex partner, and amended the definition of the term spouse to mean married and unmarried couples of the same or opposite sex. The Spousal Relationships Statute Law Amendment Act, 2005, SO 2005, c 5, which came into force on March 9, 2005, made a subsequent amendment to the definition of spouse in the ESA 2000. This amendment incorporated the amended definition of spouse in s. 1 of the Family Law Act, RSO 1990 c F.3 which (also as a result of the Spousal Relationships Statute Law Amendment Act, 2005) now refers to either of two persons who are married to each other rather than to "either of a man and woman" who are married to each other.

Parent

The definition of parent is an inclusive one, which means that the term parent could include individuals not specifically mentioned in the definition.

The Program's view of who is and is not a parent for the purposes of Part XIV is set out below – this is not necessarily an exhaustive list:

Birth parents

It is the Program's position that all birth parents are parents.

This means, for example, that all birth parents who meet the other eligibility criteria are entitled to parental leave, including birth fathers who are not currently in a relationship with the mother of their child, and birth parents who put a child up for adoption. Such individuals could also be eligible for any other Part XIV leave that is available to employees with respect to the employee's child. For example, an employee may be eligible to take family medical leave to provide care or support to his child even if he is no longer in a relationship with the mother of the child, and even if the parent gave the child up for adoption.

It also means that a surrogate mother is a parent even if she may not be genetically related to the child, which may be the case, depending on the circumstances. Accordingly, a surrogate mother may be eligible for parental leave, and any other Part XIV leave that is available to employees with respect to the employee's child.

Correspondingly, children in circumstances described above will, as an employee, be eligible to take any Part XIV leave that is available to employees vis-a-vis their parent. For example, a child may be eligible to take family medical leave to provide care or support to the child's surrogate mother, or to the child's birth father who gave the child up for adoption.

Adoptive parents

The definition of parent specifically includes a person with whom a child is placed for adoption.

This means that adoptive parents will be considered to be a parent for parental leave purposes and any other Part XIV leave that is available to employees with respect to the employee's child. Correspondingly, the adopted child will, as an employee, be eligible to take any leave respecting their adoptive parent that is available to employees vis-a-vis a parent. For example, the child could be eligible to take family medical leave to provide care or support to the adoptive father.

The Program's position is that it is sufficient that the adoption proceedings have been commenced in order to demonstrate that the placement is for the purposes of adoption. It is not necessary that adoption proceedings have been finalized.

Foster parents

The definition of parent will not cover most foster parents, as their relationship to the child is usually based upon a short-term or interim arrangement. Accordingly, most foster parents are not eligible for parental leave, which is available only to parents. They may, however, be eligible for other leaves under Part XIV that are specifically made available to foster parents, for example, family responsibility leave, bereavement leave, critical illness leave, family medical leave, family caregiver leave, domestic or sexual violence leave, child death leave and crime-related child disappearance leave.

Note, however, that if a foster parent commences adoption proceedings, thereby demonstrating an intent to adopt rather than foster the child, they will be considered an adoptive parent and therefore fall within the definition of parent.

In addition, even though they have not commenced adoption proceedings, foster parents may be considered parents if they are participating in certain programs referred to as foster to adopt programs. In such cases, a child is placed with the foster parents for the purposes of adoption by the foster parent. Such programs allow a child to be placed for adoption even though the child is not legally adoptable and adoption proceedings cannot therefore be commenced. For example, the child may be placed prior to the natural parents having consented to the adoption or relinquishing their rights to the child. In those cases, the Program will consider them to be a parent from the date of the placement.

Note it will also be possible for a foster parent to enter a foster to adopt program sometime after the child was originally placed with them as a foster child. In that case, the foster parent would be considered a parent at the time they entered the program rather than the date of placement. In some cases, foster parents will commit to adopting the foster child in their care if the child cannot be returned to their birth parents or be placed with a family member. Generally, such a foster parent would become a parent only if they commenced adoption proceedings. However, as with foster to adopt programs, such a foster parent may be considered a parent although they are unable to commence adoption proceedings because the child is not yet legally adoptable. In those circumstances, the foster parent will be considered a parent from the date the foster parent intends to adopt the child and considers the placement to be a permanent one.

Legal guardians

A person who is not a parent can become a legal guardian to a child by a court order or under a will. There are certain leaves under Part XIV that are specifically made available to legal guardians, for example, critical illness leave, family medical leave, child death leave, crime-related child disappearance leave, and domestic or sexual violence leave. Whether a legal guardian who is not a parent is eligible for leaves which apply only to parents such as parental leave would have to be determined on a case by case basis. Note that a legal guardian may be considered a parent through steps taken in adoption proceedings — see the discussion above for more information.

Person in a relationship of some permanence with a parent of a child and who intends to treat the child as their own

The definition of parent also specifically includes a person who is in a relationship of some permanence with a parent of a child and who intends to treat the child as their own. Such individuals will be considered to be a parent for parental leave purposes, and any other Part XIV leave that is available to employees with respect to the employee's child. Correspondingly, the child of such an individual will, if the child is an employee, be eligible to take any Part XIV leave that is available to employees vis-a-vis a parent.

In the Program's view, this part of the parent definition was intended to cover a person who is in a spousal-like relationship with someone who is the parent of a child, and who, although not being the birth parent or an adoptive parent of that child, intends to assume a parental role with respect to the child. The words "some permanence" connote a relationship that is not temporary or occasional.

Consider the following hypothetical example: Juan who was unattached when he was hired by his employer, meets Demetra who has a child (John) from a previous marriage and they begin dating. Six months later they pool their resources and move in together and shortly after that Juan requests a parental leave from his employer, saying that he needs time off work in order to bond with John.

The employer, who knows only that Juan's personnel file shows him as single with no dependants, is reluctant to grant the leave and contacts the Program to find out what his responsibilities are.

In this situation, there are two critical questions. The first is whether Juan and Demetra are in a relationship of some permanence. The second question is whether Juan intends to treat John as if John was his own child. Both of these questions are questions of fact, and it may well be that the only significant evidence available consists of statements from Juan himself. While the employer may point to the fact that Juan identified himself as single to the employer's human resources department when he was hired, that is easily explained by the fact that Juan and Demetra have only just moved in together.

Relationship of some permanence

Cases dealing with the meaning of this phrase under family law legislation need to be approached with a degree of caution, since the cases are usually concerned with support issues and for that reason may look to whether the relationship has been of sufficient duration to create a degree of economic dependence or inter-dependence between the parties. Nevertheless, the family law case law can be helpful. Significantly, in Abell v Casselman (1979), 1 FLRAC 449 (Ont Prov Ct) the Court held that the words "some permanence" connote a relationship that is not temporary or occasional.In Labbe v McCullough, 1979 CanLII 1204 (ON CJ)the parties had cohabited for only two periods of, respectively, four weeks and two weeks, and yet were found to be in a relationship of some permanence.

In the above example, although Juan and Demetra had been living together a relatively short time, it seems clear that the parties are committed and not just engaged in something temporary or occasional; thus, this part of the test would seem to have been met.

Intends to treat the child as their own

This aspect of the test looks to the intentions of the person vis-a-vis the child of their partner (i.e., a person with whom they are in a relationship of some permanence). Essentially it looks to whether the person's plans are to assume a parental role with respect to the child. Are they intending to assume a significant degree of responsibility for raising the child, including participation in the support, guidance education and discipline of the child, or will theirs be a "hands-off" approach in which such responsibility is left to the birth or adoptive parent? Here, Juan's perceived need to bond with John is suggestive of an individual who intends to assume a significant degree of responsibility, and in the absence of any evidence to the contrary, might be taken to indicate that this aspect of the test is also met.

Step-parents

A "step-parent" is considered by the Program to be an individual who is the spouse (within the meaning of the section 45 definition of spouse) of a child's parent.

Some step-parents will fall within the section 45 definition of parent and some will not. A step-parent will only be considered to be a parent if the step-parent adopts the child, or if the step-parent intends to treat the child as their own. If neither of those conditions are met, the step-parent will not be considered to be a parent.

Note that while only a parent is eligible to take parental leave, a step-parent is eligible to take other leaves under Part XIV, for example, an employee may take family responsibility leave, bereavement leave, family caregiver leave, child death leave, crime-related child disappearance leave, critical illness leave, domestic or sexual violence leave, or family medical leave to provide care or support to a step-child, even if they would not fall within the definition of parent in s. 45.

Other parents

Because the definition is inclusive, the Part XIV definition of parent could include an individual who is neither a birth parent, nor an adoptive parent nor a person in a relationship of some permanence with a birth or adoptive parent who intends to treat the child of that parent as their own. However, the definition cannot be considered wide open, either. To fall within the definition if none of the categories of parent set out above apply, the position of the Program is that the person must have permanently assumed a parental-like role with respect to a child, even if they would not, strictly speaking, generally be considered to be a parent.

Consider the hypothetical example in which a young birth mother moves in with her own mother (the grandmother of the child), who plays a significant role with respect to caring for the child. One year later, the mother moved out of town, leaving the child with the grandmother, who now assumed complete responsibility for the child's care. After another six months, following a conversation in which the mother indicated she had no interest in having anything to do with the child, the grandmother applied to the courts for a permanent, legal custody order, which she obtained after a further five months.

While such a custody order cannot be equated with an adoption order, there seems to be little doubt on these facts that at the point of applying for a custody order, the grandmother has assumed a parental-like role with respect to her daughter's child, and would therefore be eligible for leaves that are available with respect to the employee's child.

The more difficult issue which is relevant for the purpose of determining the timing of a parental leave entitlement may be to determine at what point the child came into the grandmother's custody, care and control for the first time – the parental leave can begin no later than 52 weeks after the day the child comes into the grandmother's custody, care and control for the first time. During the first six months after the mother moved away, although the grandmother may have assumed a parental-like role, there is no evidence to suggest that she intended this to be permanent; in some ways, her situation is similar to that of a foster parent, providing care on a temporary basis. This obviously changed after a further six months, however, as the grandmother moved to secure the right to legal custody of the child and to divest her daughter of that right. This would seem to be the point at which the grandmother decided that she would permanently treat the child as her own, even though she did not actually get the custody order for another five months. Since this is the first point at which she has custody, care and control of the child, this is the relevant point for purposes of determining when the period for starting parental leave begins. See Employment Standards Act Part XIV, section 48(2) for a discussion regarding the window for commencing parental leave.

Child

Although no definition of child appears in section 45, there are other definitions of child in Part XIV that apply to particular leaves, specifically, critical illness leave, crime-related child disappearance leave, child death leave, and domestic or sexual violence leave that do contain upper age limits and will therefore apply instead of the definition in section 45. Having regard to the different definitions of child, and the different purposes of the leaves, it is Program policy that:

With respect to parental leave only: Generally a person is no longer a child when they have reached the age of majority (18 years), as that person is typically no longer subject to care, custody and control exercised by parents. However, there may be situations where the Program would consider someone 18 or older to be a child under the parental leave provisions, such as a person who is developmentally delayed and functioning at the level of someone younger than 18 years old.
With respect to critical illness leave, crime-related child disappearance leave, child death leave and domestic or sexual violence leave: in accordance with the definitions of child in subsection 49.4(1), 49.5(1), 49.6(1), 49.7(1) the child (or specifically the minor child in the case of critical illness leave) must be under 18 years of age in order for an employee to be eligible for these leaves.
With respect to family responsibility leave, bereavement leave, family medical leave, family caregiver leave and critical illness leave: an employee may be eligible to take any of these leaves with respect to their child no matter what age the child is. For example, an employee may be eligible to take a critical illness leave or family medical leave to provide care or support to a critically or terminally ill 30-year old child. However, for critical illness leave, the length of the leave will vary depending on whether the child is a minor child (under 18 years) or an adult child (18 years or older).

Spouse

A person is a spouse as defined in s. 45 if they are a spouse as defined in section 1 of the Family Law Act, RSORSO 1990, c F.3 (generally this means a person who is legally married to someone of the same or the opposite sex) or if they are living with someone of the same or opposite sex in a conjugal relationship outside marriage.

Section 1 of the Family Law Act defines spouse as:

Section 46 – Pregnancy leave

Pregnancy leave – section 46(1)

This provision means that an employee is entitled to pregnancy leave if she would have been employed for a period of at least 13 weeks immediately preceding her due date had she worked until that date.

It is not necessary that the employee be actively working for all or any part of the 13-week qualifying period. For example, if the employee was hired just 13 weeks before her due date but became ill and was unable to work from the day after she started (or went on vacation or was laid-off during that 13 weeks), she will be entitled to the leave. This interpretation of s. 46(1) is reinforced by the fact that the right to commence the leave up to 17 weeks before the expected date of birth pursuant to s. 46(2) would be a nullity if the employee were required to actively be at work in the 13 weeks immediately preceding the expected date of birth. Another example is where, theoretically, an employee who is hired 13 weeks before her due date could begin her pregnancy leave immediately after being hired.

Section 8(2) of O Reg 288/01, which ties together periods of employment that are not more than 13 weeks apart, applies only to the Termination and Severance of Employment context. Therefore, where there has been a clear interruption in the employer-employee relationship during the 13-week qualifying period, the requirement in s. 46(1) will not be met. A clear quit or termination will break the length of employment.

For example, an employee's baby is due on February 19. On August 1 of the previous year, she was hired for a six-month contract that ends on February 1. On February 3 she is rehired as a permanent employee. Does she qualify for a pregnancy leave? In this example, she would not be entitled because there was a severing of the employment relationship on February 1 (when the contract ended) and a gap between that period of employment and the next period of employment, when the employee was hired on permanently on February 3. She could not be said to have been hired 13 weeks prior to the expected date of birth and is thus not entitled to take a pregnancy leave (although she will be entitled to a parental leave 13 weeks after February 3).

On the other hand, if the employee's contract had ended February 1 and she was hired permanently on February 2, she would be entitled to pregnancy leave, as she is considered to have commenced her employment on August 1, which is at least 13 weeks prior to her February 19 due date.

An employee may move from contract to permanent, or from part-time to full-time status, or vice versa, within the 13-week qualifying period without affecting the entitlement to leave. If the applicant has been the employer's employee for the entire 13-week period, whether active or inactive, contract or permanent, part-time or full-time, she is entitled to the leave. The qualifying condition makes no distinction between contract, permanent, active, inactive, part-time or full-time employees.

When leave may begin – section 46(2); Exception – s. 46(3)

These provisions place restrictions on the earliest a qualified employee can begin her pregnancy leave.

Section 46(2) states that the earliest a pregnancy leave can begin is the earlier of two points in time, namely, 17 weeks before the due date (clause (2)(a)) or the date of birth (clause (2)(b)). Section 46(3) provides that in cases of still-birth or miscarriage, clause (2)(b) will not apply.

Together, subsection 46(2) and 46(3) mean that the earliest day a pregnancy leave can begin is 17 weeks before the due date. However, if there is a live birth (as opposed to a still-birth or miscarriage) more than 17 weeks before the due date, the pregnancy leave can begin as early as the birth date. (This latter result was introduced by the Employment Standards Act, 2000. Previously, women who had live births more than 17 weeks before the due date were not entitled to take a pregnancy leave.) In cases of still-birth or miscarriage, the earliest a pregnancy leave can begin is 17 weeks before the due date. Because an employee cannot begin a pregnancy leave any later than the date of birth (see section 46(3.1)), a woman whose pregnancy ends in a miscarriage or still-birth more than 17 weeks before the due date is not entitled to take a pregnancy leave (although she may be eligible for sick leave under section 50 or qualify for some additional leave under her contract of employment, such as short term disability).

Under predecessor pregnancy leave provisions in the former Employment Standards Act, RSO 1980, c 137 (section 35), an employer could require an employee to stop work at any time during the pregnancy, "at such time as the duties of her position cannot reasonably be performed by a pregnant woman or the performance of her work is materially affected by the pregnancy." This meant that the employee could be "put" on a pregnancy leave. That provision was repealed in 1990 and is not part of the Employment Standards Act, 2000. It is the employee's right to decide when she will commence leave (within the times set out in section 46) or if she will take a leave at all.

Under the Ontario Human Rights Code, RSO 1990, c H.19 (the "Code"), employers are required to accommodate the needs of pregnant employees, unless that would cause undue hardship to the business. Therefore, where an employee is unable, because of her pregnancy, to perform some aspect of her job, the Code provisions could require the employer to relieve her of the responsibilities of that aspect of her position but allow her to continue working. It would be inconsistent with this obligation to allow employers to force pregnant employees onto a pregnancy leave where their performance was adversely affected by the pregnancy.

In addition, because employers no longer have the right to "put" an employee on her leave before she had otherwise intended to go, an employee who is sick - even though it is related to or caused by the pregnancy - will be entitled to be treated like any other sick employee until the date she commences her leave. In James v Craiglee Nursing Home, 2004 CanLII 30948 (ON LRB) the employee was unable to perform the duties of her job for health reasons related to her pregnancy and went off sick on November 23, 2001. Her baby was born on February 27, 2002. She did not provide the employer with any written notice with respect to the pregnancy leave. On February 12, 2003 when she contacted the employer to ask to be put on the shift schedule she was informed that she had "overstayed" her leave. The employer argued that her pregnancy leave had commenced November 23, 2001 and they no longer had any obligation to reinstate her in February 2003. The Ontario Labour Relations Board found on the evidence that the employee had left on a sick leave with the full knowledge of the employer on November 23, 2001. The Board further held that although the employee gave the employer no written notice with respect to the commencement of the pregnancy leave that it had in fact commenced on the date of the baby's birth (February 27, 2002) in accordance with section 46(2)(b). The employer therefore had an obligation to reinstate her at the end of February 2003. The Board ordered reinstatement.

Impact of lay-off on right to commence leave

What if the employee is on lay-off at the point when she would otherwise have commenced the leave? Depending on the timing of the lay-off in relation to her due date, she may have the option to convert from lay-off to pregnancy leave. This is because once the employee commences her leave, the "lay-off clock" for the purposes of Part XV (Termination and Severance of Employment) of the Act stops running. A week of lay-off is defined to exclude weeks in which the employee is unavailable for work, and an employee is unavailable for work if she is on a leave.

Note that in all of the following examples, it is assumed that the employee gave birth on her due date.

Example 1 – Employee can convert a lay-off to a leave

Thirty weeks before the employee's due date, she is laid off. Benefits are not continued. The employee had intended to commence pregnancy leave on her due date. Seventeen weeks before the due date (13 weeks after the lay-off began), her employment would be deemed terminated pursuant to Part XV of the Act, effective the first day of the lay-off. However, she could convert to pregnancy leave on the day her employment was to be terminated (being within 17 weeks of due date).

If the employee did not take any active steps to convert or notify her employer at the time, the principles enunciated in Re Scott and Roos Family Shoes (Brampton) Ltd. et al., 1985 CanLII 2124 (ON SC), a decision under the former Employment Standards Act, would apply such that she would not lose her entitlement to take pregnancy leave despite her lack of notice. However, special attention should be paid to the evidence supporting the employee's claim that she had intended to convert from lay-off to pregnancy leave prior to the deemed termination.

Example 2 – Employee cannot convert a lay-off to a leave

Thirty-six weeks before the employee's due date, she is laid off. Benefits are not continued. Twenty-three weeks before the due date (i.e., 13 weeks after the lay-off began), the employee is deemed terminated for the purposes of Part XV of the Act, effective the first date of lay-off. There is no right to the leave, as the employment relationship has come to an end before the earliest date she could begin a leave. It is important to note that, for the purposes of this example, the termination had nothing to do with the employee's intention to take a leave.

Latest day for beginning pregnancy leave – section 46 (3.1)

This provision was introduced by the ESA 2000. It codifies Program policy under the former Employment Standards Act.

Section 46(3.1) places restrictions on the latest a qualified employee may begin her pregnancy leave. The leave must begin no later than the due date or the birth date, whichever occurs first.

Notice – section 46(4)

These provisions are similar to the corresponding provision (s. 35(3)) of the former Employment Standards Act. One change, however, is that an employee is now only required to produce a medical certificate indicating her due date if asked to do so by her employer.

Section 46(4)(a) requires a pregnant employee to give two weeks' written notice of her intention to take a pregnancy leave. Under s. 46 (4)(b), the employee must submit a medical certificate that shows the due date, if asked to do so by the employer.

An employee's failure to conform to the statutory requirements for notice will not disentitle her to the pregnancy leave. It is the Program's view that the requirement to give notice of the leave is not a condition precedent to the entitlement to the pregnancy leave. An employee's entitlement to leave arises by virtue of having commenced her employment at least 13 weeks prior to the due date and it is the Program's position that the failure to give notice does not negate or diminish that entitlement. The Program's policy is consistent with the Ontario Divisional Court decision in Re Scott and Roos Family Shoes (Brampton) Ltd. et al.in which the Court held that the written notice requirement in the former Employment Standards Act was a formality only.

Notice to change date – section 46(5)

Under s. 46(5), an employee who has given notice to begin a pregnancy leave is entitled to change the date on which the leave will begin.

The employee may begin her leave on an earlier date than set out in her original notice, provided she gives the employer at least two weeks' written notice before the earlier day on which she now wishes to begin her leave.

The employee may begin her leave on a later day than set out in her original notice, provided she gives the employer at least two weeks' written notice before the day that was set out in her original notice.

Note that the options given to an employee by s. 46(5) to change the starting date of her leave remain subject to the limitations on the earliest and latest dates a leave may begin set out in ss. 46(2) and (3.1).

Notice to Change Date: Complications, et cetera – section 46(6)

This provision is similar to the corresponding provision (s. 36(1)) of the former Employment Standards Act. The only change is that an employee is now only required to provide a medical certificate if asked to do so by her employer.

If an employee stops work due to complications arising from the pregnancy, or because of a premature birth, still-birth or miscarriage, the alternate notice provisions set out in s. 46(6) will apply instead of those set out in s. 46(4).

Retroactive notice of the date the leave began

The notice must state the day the pregnancy leave began if the employee stops working because:

She has given birth, had a still-birth, or suffered a miscarriage before the due date (note that the birth, still-birth or miscarriage will trigger the commencement of the leave); or
She has stopped work because of pregnancy-related complications and has decided to commence her leave immediately.

Notice that the employee will begin leave at a future date

The notice must state the date the pregnancy leave will begin where the employee has suddenly had to stop work because of complications related to the pregnancy but has not yet given birth and does not wish to commence the leave at this point. For example, she may intend to commence the leave on the due date and use her sick benefits in the meantime.

For an employee who stops working due to complications caused by the pregnancy (whether or not she is beginning her pregnancy leave immediately upon stopping work), the medical certificate, if requested by the employer, must confirm that she is unable to perform the duties of her position, and state the employee's due date. In any other case, the medical certificate must state the due date and the actual date of the birth, still-birth or miscarriage.

Section 46.1 – Definition

Definition – section 46.1

This section defines legally qualified medical practitioner for the purposes of ESA Part XIV, s. 46. Subsections 46(4)(b) and 46(6)(b) specify that if the employer requests it, the employee must provide the employer with a certificate from a legally qualified medical practitioner stating the employee’s due date, that she is unable to perform the duties of her position due to pregnancy complications, or the actual date of the birth, still-birth or miscarriage to support the commencement of her pregnancy leave.

Person who is qualified to practise as a physician

"A person who is qualified to practise as a physician" generally means a medical doctor who is a member of the College of Physicians and Surgeons of Ontario. A physician of any specialty will meet the definition, however, practically speaking an obstetrician-gynecologist or a family medicine or general practitioner will likely be the person who issues the certificate.

Where care or treatment is provided in a jurisdiction other than Ontario, the question of whether the person is “qualified to practice as a physician” is determined with reference to the laws of that other jurisdiction.

Person who is qualified to practise as a midwife

“A person who is qualified to practise as a midwife” generally means a member of the College of Midwives of Ontario and a holder of a general certificateper the Midwifery Act, 1991.

Where care or treatment is provided in a jurisdiction other than Ontario, the question of whether the person is “qualified to practice as a midwife” is determined with reference to the laws of that other jurisdiction.

Registered nurse who holds an extended certificate of registration

"A registered nurse who holds an extended certificate of registration" means a member of the College of Nurses of Ontario who is a registered nurse and holds an extended certificate of registration in accordance with O Reg 275/94 made under the Nursing Act, 1991, SO 1991, c 32. These individuals are generally known as nurse practitioners in Ontario. This definition does not include a registered nurse who is a holder of a general certificate, or a registered practical nurse.

In the prescribed circumstances, a member of a prescribed class of medical practitioners

At the time of writing, no circumstances and no class of medical practitioners have been prescribed.

Section 47 – End of pregnancy leave

End of pregnancy leave – section 47(1)

The Fair Workplaces, Better Jobs Act, 2017, SO 2017, c 22, amended s. 47(1)(b)(ii) of the Employment Standards Act, 2000 on January 1, 2018. Please see s. 47(1.1) below for more information on the application of this provision with respect to a leave commenced prior to January 1, 2018.

Under s. 47(1)(a), the pregnancy leave of an employee who is entitled to a parental leave (e.g., where there has been a live birth) will end 17 weeks after it began.

Section 47(1)(b) only applies where an employee is not entitled to a parental leave. In other words, it only applies where there is no child (i.e., it has not been born yet) or where it is still-born or died before the pregnancy leave ended. The effect of this provision is two-fold. First, it enables an employee who has used all 17 weeks of pregnancy leave before the child is born to remain on pregnancy leave up until the birth. Secondly, it ensures that employees who have a miscarriage, still-birth or whose child dies during the pregnancy leave will have at least 12 weeks after the date of delivery before the employee’s pregnancy leave ends. Similarly, an employee who has had a miscarriage during her pregnancy leave will have at least 12 weeks after the miscarriage before she can be required to return to work.

Example 1

An employee commenced her pregnancy leave 15 weeks before the baby’s due date. Two weeks after the due date (which is 17 weeks after the pregnancy leave began) the baby is still not born. The baby is born two weeks later, or 19 weeks after the pregnancy leave first began. Because the employee was not entitled to parental leave after 17 weeks of pregnancy leave (because the baby was not yet born), s. 47(1)(a) would not apply to end the leave at that point. Instead, s. 47(1)(b) would apply to extend the pregnancy leave on the basis that the leave cannot end until the later of the day that is 17 weeks from the date the leave began or 12 weeks after the date of birth. In this example, a live birth would trigger the end of the pregnancy leave because the employee no longer falls under the description in s. 47(1)(b) — that is, she is no longer not entitled to a parental leave. In turn, the end of the pregnancy leave will necessitate the commencement of the parental leave (assuming that the employee wishes to take parental leave) because s. 48(3) states that the parental leave of an employee who takes a pregnancy leave must commence when the pregnancy leave ends. It is Program policy that the pregnancy leave is not extended for 12 weeks after the date of the birth. This employee ends up with 19 weeks of pregnancy leave followed immediately by her parental leave. It is important to note that an extension of the pregnancy leave does not act to reduce an employee’s entitlement to parental leave.

In the event the child in the example above had been still-born, s. 47(1)(b) would have applied to give the employee an additional 12 weeks of pregnancy leave after the delivery. In that case, she would have had a total of 31 weeks of pregnancy leave, although she would not get any parental leave.

Example 2

The employee delivered the baby on the due date, which happened to be 15 weeks after the pregnancy leave began, and the child died one week later (i.e., before the pregnancy leave ended). In this case, s. 47(1)(b) would apply. As an employee not entitled to take a parental leave, her pregnancy leave would end on the later of the date that is 17 weeks after the leave began or 12 weeks after the birth of the child. This employee would end up with 27 weeks of pregnancy leave (15 weeks before the birth plus 12 weeks after the birth), but again, would not be entitled to any parental leave.

Transition – section 47(1.1)

The Fair Workplaces, better Jobs Act, 2017, SO 2018, c 22 amended the ESA 2000 on January 1, 2018 and extended the entitlement in s. 47(1)(b)(ii) from six weeks after the birth, still-birth or miscarriage to 12 weeks after the birth, still-birth or miscarriage.

As such, if an employee commences a pregnancy leave on or after January 1, 2018 and is ultimately not entitled to a parental leave because of a still-birth, death of a child or miscarriage, she will be able to remain on pregnancy leave until the later of 17 weeks after the leave began or 12 weeks after the birth, still-birth or miscarriage.

For employees whose pregnancy leave commenced prior to January 1, 2018, the reference to 12 weeks in s. 47(1)(b)(ii) must be read as 6 weeks. In other words, if an employee who started her pregnancy leave before January 1, 2018 is not entitled to take a parental leave due to a still-birth, death of a child or miscarriage, she will be entitled to remain on pregnancy leave until the later of 17 weeks after the leave began or six weeks after the date of the birth, still-birth or miscarriage.

Ending leave early – section 47(2)

If the employee intends to return to work either before the end of the 17 weeks set out in s. 47(1)(a), or the potentially longer period of leave as set out in s. 47(1)(b), the employee must give the employer notice in writing at least four weeks in advance of the date she plans on returning.

It should be noted that if the employee has chosen to shorten her pregnancy leave and return to work, she gives up the balance of pregnancy leave she would otherwise have had. Pregnancy leave (like parental leave) cannot be started and stopped and resumed at a later date. An employee has the right to take a pregnancy leave that is at least 17 weeks long, but she may also choose to take any shorter period, which will be considered to represent her full entitlement to the leave. In addition, unless the child is still in hospital on the day the leave ends, she will forfeit her right to parental leave because it must be commenced when the pregnancy leave ends; see ESA Part XIV, s. 48(3).

The employer has no right to require the employee to provide any documentation to prove that she is fit to return to work.

In contrast to the Program’s position respecting the notice requirements to commence the leave, it is the Program’s position that the employer can refuse to allow the employee to return to work at an earlier date than that provided for in ss. 47(1)(a) and (b) if the employee has not given the employer four weeks’ notice in writing.

Changing end date – section 47(3)

Under s. 47(3), an employee who has given notice under s. 47(2) to end her leave early is entitled to change her mind and end the leave on an even earlier or later date. If she wishes to end the leave on an earlier date than that set out in her original notice, the employee must give her employer a new written notice at least four weeks before the earlier day on which she now proposes to end the leave.

If the employee wishes to end the leave on a later date than that specified in the original notice, she must give the employer a new written notice at least four weeks before the return date indicated in the original notice.

In contrast to the Program’s position respecting the notice requirements to commence a leave, it is the Program’s position that the employer can refuse to allow the employee to return to work at an earlier or later date than the date provided in her notice under s. 47(2) if the employee has not given the employer four weeks’ notice in writing.

Employee not returning – section 47(4)

Section 47(4) provides that an employee who takes pregnancy leave shall not terminate her employment before the leave expires or when it expires, without giving the employer at least four weeks' written notice of the termination. This section should be read in conjunction with s. 47(5), which creates an exception for employees who are constructively dismissed — see the discussion of s. 47(5) below.

While an employer can file a complaint with the Program if the employee fails to give proper notice, there is no remedy available to it under the ESA 2000 that would allow it to recover any damages that arose from the failure to provide notice. In order to recover such damages, the employer would have to pursue a civil remedy. The employer cannot make a deduction from any outstanding wages due to the employee (for example, commissions that became due to the employee during the leave) in an attempt to recover the damages.

Exception – section 47(5)

Section 47(5) creates an exception to the requirement in section 47(4) that an employee on a pregnancy leave provide four weeks' written notice of their intention to resign before or upon the expiry of the leave. The notice requirement will not apply in situations where the employer has constructively dismissed the employee. See Employment Standards Act, Part XV, section 56(1) for a discussion of constructive dismissal. The same principles apply here.

Section 48 – Parental leave

Parental leave – section 48(1)

The entitlement to a parental leave arises following the birth of a child (as in the case of a birth mother, including a surrogate mother, or a birth father) or the coming of a child into the custody, care and control of an employee for the first time (generally all parents other than birth parents, including adoptive parents). Parental leave may not be commenced before the actual day of birth or the day that the child came into an employee's custody, care and control; in other words, not before the employee is a parent. See Employment Standards Act, Part XIV, section 45 for a discussion of the definition of parent.

To be eligible for parental leave, the employee has to have been employed for at least 13 weeks prior to the commencement of the leave. Note that the reference date for parental leave eligibility is the date the leave is to begin, whereas the reference date for pregnancy leave eligibility is the due date. As with the pregnancy leave qualifying period, it is not necessary that the employee be actively working for all or any part of the 13 weeks prior to commencing the leave. For example, the employee could be off sick, on vacation or on lay-off during the qualifying period.

It should be noted that there is no requirement that the employee work 13 weeks after the child is born or comes into custody, care and control of the parent.

A birth father may want to start his parental leave on the actual date of birth. In that case, he should give his employer at least two weeks' notice before the expected date of birth, as required by s. 48(4). If the baby is born prior to that date, he can start his leave on the birth date, but he must then comply with the retroactive notice provisions set out in s. 48(6). If the baby has not yet been born by the due date, he must continue working until the actual birth date; he cannot begin parental leave prior to the birth of the child because he will not yet meet the eligibility criteria of being a parent. In this latter case, after the due date has passed, the employer will essentially be on day-to-day notice that the employee will go on leave, and will not really have received the required two weeks' notice. However, the employer would have known approximately when the employee would leave, and, as with pregnancy leave, an employee's failure to conform to the statutory requirement to provide notice of a leave will not disentitle them to the parental leave. See Employment Standards Act, Part XIV, section 46(4).

An employee's entitlement to parental leave arises by virtue of being a new parent and having commenced their employment at least 13 weeks prior to taking the leave, and it is the Program's position that the failure to give notice does not negate or diminish that entitlement. The Program's policy is consistent with Re Scott and Roos Family Shoes (Brampton) Ltd. et al., 1985 CanLII 2124 (ON SC) in which the Ontario Divisional Court held that the written notice requirement in the former Employment Standards Act was a formality only.

An employee on lay-off may still be entitled to take a parental leave. Refer to the extensive discussion on how lay-off impacts on pregnancy leave in Employment Standards Act, Part XIV, section 46(2). The same principles apply to parental leave.

When leave may begin – section 48(2)

The Fair Workplaces, Better Jobs Act, 2017, SO 2017, c 22 amended s. 48(2) on December 3, 2017. The timeframe within which a parental leave may begin for an employee, other than a birth mother who has taken pregnancy leave, was extended from 52 to 78 weeks. See s. 48(2.1) below for more information on the application of this provision prior to December 3, 2017.

This section provides that an employee who is the parent of a child must commence parental leave within 78 weeks of either the date the child was born, or the date the child came into the parent's custody, care and control for the first time.

This section does not require the leave to be completed within the 78-week period. It requires the leave to be commenced within that period.

Other than the requirement to commence the leave within the 78-week period, the parent is not restricted in any other way with respect to the commencement of the leave. Whether the employee's partner or spouse takes a pregnancy or parental leave, or the fact that the employee's partner or spouse may be on either of those leaves will not affect the employee's right to commence a parental leave.

Note that s. 48(3) sets out special rules regarding commencement of parental leave for a birth mother who has taken pregnancy leave. A birth mother who has taken a pregnancy leave will not have the 78-week period as set out in s. 48(2) within which to commence the leave except in special circumstances. See the discussion in s. 48(3) below.

Birth parents

A birth father, and a birth mother who does not take pregnancy leave, will normally be required to commence the leave within 78 weeks of the date the child is born because typically, the birth date is also the date the child first comes into the custody, care and control of the parents. In the case of a birth without significant complications, the fact that the mother and the baby remain in hospital for a few days does not mean that the hospital, rather than the parents, had custody, care and control of the child.

However, if the child has significant medical problems that necessitate a lengthy hospital stay following birth, the date that the child was actually released from hospital into their parents' care should be regarded as the date that the child came into their custody, care and control for the first time. With one exception, either or both parents could choose to commence the leave within 78 weeks of the date of the birth, or they could defer commencing the leave to some point within the 78-week period following the date the child was released from hospital.

The exception to this is that a birth mother who had taken pregnancy leave and who was still on that leave when the child was released from hospital would be required to commence her parental leave when the pregnancy leave ended. See the discussion in s. 48(3) below regarding commencement of parental leave for birth mothers who have taken pregnancy leave.

Parents other than birth parents

Parents other than birth parents must begin parental leave within 78 weeks of the date the child first comes into custody, care and control of the parent, after the employee becomes a parent.

Adoptive parents

The definition of parent includes a person with whom a child is placed for adoption. It is Program Policy that "placed for adoption" means that adoption proceedings must have been commenced but do not necessarily have to have been completed.

Once the employee is an adoptive parent and therefore entitled to take a leave, the 78-week clock will run from the date the child first comes into the parent's custody, care and control i.e. the date the child was placed for adoption.

Parents other than birth parents or adoptive parents

Section 48(2) also applies to employees who become parents by virtue of entering into a relationship of some permanence with a person who is already a parent of a child, together with their intent to treat to treat that child as their own.

Once the employee is a parent, the 78-week clock will run from the date the child first comes into that parent's custody, care and control. See Employment Standards Act Part XIV, section 45 for a discussion.

Transition – section 48(2.1)

The Fair Workplaces, Better Jobs Act, 2017, SO 2017 c 22 amended the Employment Standards Act, 2000 to extend the timeframe within which an employee may begin a parental leave to correspond with changes in the way employment insurance benefits could be taken.

Employees who did not take a pregnancy leave and whose child was born or came into their custody, care, or control on or after December 3, 2017, are required to begin their leave within 78 weeks of the date of birth or of the child coming into the employee’s custody, care or control.

An employee who did not take pregnancy leave and whose child was born or came into their custody, care or control prior to December 3, 2017 is limited to the previous timeframe of 52 weeks for beginning the leave.

Restriction if pregnancy leave taken – section 48(3)

Section 48(3) applies only to a birth mother who has taken a pregnancy leave. It requires that she commence her parental leave immediately after the pregnancy leave ends except in special circumstances. As a consequence, she cannot return to work when the pregnancy leave ends and retain a right to parental leave under the ESA 2000.

It is important to note that under federal Employment Insurance legislation, a birth mother may be entitled to return to work for a while after her maternity benefits run out and before starting to receive her parental benefits. Many employees are under the misconception that the requirements for commencement of the leave itself are the same as those regarding entitlements to employment insurance benefits, or they may believe that the right to the employment insurance benefits is the same thing as the right to leave. It should be emphasized that an employee who wishes to avail herself of the right to leave and protect her rights to benefits during the leave and reinstatement afterward must (with one exception) commence the parental leave when the pregnancy leave ends. However, see Royce v Huan and Danczkay Properties Inc. (July 12, 1995), ESC 95-136 (Novick), a decision under the former Employment Standards Act in which the adjudicator found that although the employee returned to work at the employer's request for a couple of days after her pregnancy leave, she was not disentitled to parental leave. This aspect of the decision is contrary to Program policy.

The exception to this requirement occurs when the child has not come into the custody, care and control of the employee for the first time, by the time the employee has ended her pregnancy leave. In such cases, s. 48(2) will apply and the birth mother must commence the parental leave within 78 weeks of the date of the birth or the date the child first comes into her custody, care and control for the first time. For example, if the child was hospitalized from birth and was still in the hospital's care when her leave ended, the employee could return to work and delay the commencement of her parental leave until the child came home.

Note that the exception will not apply in situations where the child was released from hospital, then subsequently became ill and re-entered the hospital and was still there when the birth mother's pregnancy leave ended. In this situation, the employee would already have had the child in her custody, care and control for the first time prior to the date the pregnancy leave ended.

The application of s. 48(3) is limited to those situations where the birth mother has taken a pregnancy leave. A birth mother who did not take pregnancy leave (e.g., she was ineligible because she had not been hired at least 13 weeks before the expected date of birth, or she was eligible for pregnancy leave but simply chose not to take it) is governed by s. 48(2), and is allowed to commence the parental leave at any time within 78 weeks of the date of birth or date the child first came into her custody, care and control.

Notice – section 48(4)

An employee who wishes to take parental leave is required to give at least two weeks' notice in writing of their intention to take parental leave. For the employee who is on pregnancy leave, this means that she must notify her employer of her intention to take parental leave at least two weeks before the pregnancy leave ends, unless the child has not yet come into her custody, care and control for the first time and she is delaying the start of her parental leave. She cannot be forced to give notice of her intention to take parental leave at the same time she gives notice of her intention to take pregnancy leave.

The Program takes the position that the principle enunciated in the Re Scott and Roos Family Shoes (Brampton) Ltd. et al.decision in the pregnancy leave context applies equally to the parental leave context – see the discussion of this case in Part XIV, section 46(4). In other words, failure to comply with the requirement to provide two weeks' written notice of a parental leave will not diminish the employee's right to the leave.

Notice to change date – section 48(5)

Section 48(5) permits an employee who has given notice to begin parental leave to change the date upon which the leave begins if certain conditions are met. Where the employee wishes the leave to begin on an earlier date, s. 48(5)(a) requires a new written notice by the employee at least two weeks before the earlier date. Where the employee wishes the leave to begin on a later date, s. 48(5)(b) requires a new written notice at least two weeks before the date that was set out in the original notice.

An employee wishing to change the date the parental leave will start must, of course, still comply with the restrictions on the earliest and latest the leave can begin as set out in ss. 48(1), (2) and (3).

If child earlier than expected – section 48(6)

This section provides an alternate notice requirement where an employee stops work before giving notice of an intention to take a parental leave, or before the parental leave was scheduled to begin, because the child came into the custody, care and control of the employee earlier than expected. In that case, the leave begins on the day the employee actually stops working, and the employee must provide written notice within two weeks after stopping work.

Note, however, that the Program takes the position that the principle enunciated in the Re Scott and Roos Family Shoes (Brampton) Ltd. et al. decision under the former Employment Standards Act, 2000 in the pregnancy leave context applies equally in the parental leave context. In other words, failure to comply with the requirement to provide written notice of the parental leave will not diminish the employee's right to the leave.

An example of where this provision will apply is where a birth father gave his employer two weeks' notice prior to the estimated date of birth, and the baby was born earlier than expected. The father can commence his leave as early as the birth date, and must comply with the retroactive notice provisions in s. 48(6)(b). Note, however, that this provision won't apply, for example, where the baby is born prematurely and then goes into neo-natal intensive care for weeks or months. In that case, the baby has not yet come into the custody, care and control of the parent.

Section 49 – End of parental leave

End of parental leave – section 49(1)

A parental leave will end 61 weeks after it began if the employee also took a pregnancy leave, or 63 weeks after it began if the employee did not take a pregnancy leave, unless the employee provides notice of an earlier return date pursuant to s. 49(2). In other words, the employer must assume that an employee who has taken a parental leave will be gone for the full 61 or 63 weeks unless the employee gives written notice to the contrary. There is no obligation for an employee to take the full amount of the leave. If, for example, an employee opts to receive federal Employment Insurance (“EI”) benefits at a higher rate over a 52 week period instead of a lower rate over an 18 month period, they may wish to take a leave that is shorter than the full entitlement. See remarks on changes to the federal EI program, below.

The length of parental leave was increased on December 3, 2017 in order to enable employees to take advantage of the extended period of time over which EI parental benefits may be taken. It is important to note, however, that there remain significant differences regarding entitlements between the Employment Standards Act, 2000 and the federal Employment Insurance Act, SC 1996, c 23. For example, parents can take some paid work with their employer without losing any EI parental benefits. They can also interrupt the period in which they receive EI benefits and return to work, then begin receiving benefits again at a later date.

However, the ESA 2000 does not contemplate "splitting" parental leave (or pregnancy leave). For example, an employee cannot take 10 weeks of parental leave under the ESA 2000, return to work for some period and then take the balance of 51 or 53 weeks of parental leave. Because the ESA 2000 does not contemplate stopping and restarting the leaves, an employee who returns to work early is considered to have ended their leave under the ESA 2000.

In this regard see a decision of the Ontario Grievance Settlement Board in Association of Management, Administrative and Professional Crown Employees of Ontario v Ontario (Management Board Secretariat), 2005 CanLII 55230 (ON GSB), in which the arbitrator concluded that the "legislature intended to provide employees with the opportunity to take one continuous parental leave of absence following a birth or adoption". In this regard, the arbitrator noted that there was no explicit language in the ESA 2000 to support a right to take the leave in instalments and furthermore, that it was clear that an effort had been made to balance the employee benefit (the leave entitlement) with an employer's interest in avoiding the disruption that could result if employees were permitted to split up parental leave. The arbitrator also rejected the union's argument that the ESA 2000's provisions should be interpreted in a manner consistent with the Employment Insurance Act on the basis that there is nothing the ESA 2000 to suggest that entitlement to a leave is dependent only upon an employee receiving EI benefits.

Note that Program policy is that employees will not be considered to have ended their ESA 2000 leave if they take work with an employer from whom they did not take the leave. For example, an employee may take a parental leave from their full-time job with employer A and work part-time with employer B during their leave without losing their entitlement to the ESA 2000 parental leave from their full-time job.

Once employees begin a parental leave, they have the right to take the full 61 or 63 weeks. For example, a birth father whose child dies five weeks into his parental leave has the right to take the remaining 58 weeks of leave if he wishes.

Transition – section 49(1.1)

The Fair Workplaces, Better Jobs Act, 2017 amended the ESA 2000 and extended the amount of parental leave available to employees on December 3, 2017 to correspond with changes in the way EI benefits could be taken. Previously, employees who had taken pregnancy leave were entitled to 35 weeks of parental leave, and employees who had not taken pregnancy leave were entitled to 37 weeks.

This section provides that if the child was born or first came into the employee’s custody, care and control for the first time before December 3, 2017, the employee’s parental leave ends 35 weeks after it began, if the employee took preganancy leave, or 37 weeks after it began otherwise. If the child was born or first came into the employee’s custody, care and control on or after December 3, 2017, the employee is entitled to take the longer leave of up to 61 or 63 weeks.

Ending leave early – section 49(2)

Section 49(2) provides that a parental leave may end earlier than 61 or 63 weeks after it began, as provided in s. 49(1), if the employee gives the employer at least four weeks' written notice before the earlier date.

Unlike the Program's position with respect to the notice requirements to commence the leave, it is the Program's position that the employer can refuse to allow the employee to return to work earlier than the 61 or 63 week mark if the employee has not given the employer four weeks' notice in writing.

Changing end date – section 49(3)

49(3) An employee who has given notice to end his or her parental leave may end the leave,

on an earlier day then was set out in the notice, if the employee gives the employer a new written notice at least four weeks before the earlier day; or
on a later day than was set out in the notice, if the employee gives the employer a new written notice at least four weeks before the day indicated in the original notice. An employee may have given notice under s. 49(2), or even this section, that they intended to end the parental leave on a date earlier than the maximum or on a different date than the date they set out in a previous notice. However, the employee may then change their mind, and wish to end the leave on a different date. The employee may change the date the leave will end to an earlier date so long as they give at least four weeks' written notice before the new earlier date or to a later date so long as they give at least four weeks' written notice before the original date.

In contrast to the Program's position with respect to the notice requirements to commence the leave, it is the Program's position that the employer can refuse to allow the employee to return to work at a different date than that indicated in their previous notice if the employee has not given the employer four weeks' notice in writing.

However, where an employee does not provide enough notice, an employer that does not accept the new return date must communicate its refusal at the time of the request or shortly thereafter. An employer cannot keep its objection to itself and then rely on the employee's failure to provide proper notice to defeat the employee's right to reinstatement. For example, an employee wants to change her return date to a date that is three weeks later than her original return date, but she gives only two weeks' written notice of this change. The employer does not provide the employee with approval, but neither does it communicate its objection to the employee. The employer cannot claim in these circumstances that the employee has lost her right to reinstatement because of her failure to comply with s. 49(3). In this regard, see Royce v Huan and Danczkay Properties Inc. (July 12, 1995), ESC 95-136 (Novick).

Employee not returning – section 49(4)

Section 49(4) provides that an employee who takes parental leave shall not terminate their employment before the leave expires, or when it expires, without giving the employer at least four weeks' written notice of the termination. This section should be read in conjunction with s. 49(5), which creates an exception to the notice requirement for employees who are constructively dismissed – see the discussion of section 49(5) below.

While an employer can file a complaint with the Program if the employee fails to give proper notice, there is no remedy available to it under the Employment Standards Act, 2000 that would allow it to recover any damages that arose from the failure to provide notice. In order to recover such damages, the employer would have to pursue a civil remedy. The employer cannot make a deduction from any outstanding wages due to the employee (for example, commissions that became due to the employee during the leave) in an attempt to recover the damages.

Exception – section 49(5)

Section 49(5) provides an exception to the requirement in s. 49(4) that an employee on parental leave provide four weeks' written notice of their intention to resign before or upon the expiry of the leave. The requirement does not apply where the employer has constructively dismissed the employee. See Employment Standards Act Part XV, section 56 for a discussion of constructive dismissal. The same principles apply here.

Section 49.1 – Family medical leave

Family medical leave – section 49.1(1)

Qualified health practitioner

This section contains definitions of two of the terms used in the family medical leave provisions.

"Qualified health practitioner" is referred to in s. 49.1(2). In order for an employee to be entitled to a family medical leave, a qualified health practitioner must issue a certificate stating that an individual has a serious medical condition with a significant risk of death occurring within a period of 26 weeks, and that individual must be a family member specified in s. 49.1(3).

Qualified health practitioner is defined for the purpose of the family medical leave provisions as:

A person who is qualified to practise as a physician under the laws of the jurisdiction where the ill family member is being cared for or treated. In Ontario, doctors who are members of the College of Physicians and Surgeons of Ontario will meet the s. 49.1(1)(a) definition of qualified health practitioner.

A registered nurse who holds an extended certificate of registration, or an equivalent qualification under the laws of the jurisdiction where the ill family member is being cared for or treated. In Ontario, this specifies a member of the College of Nurses of Ontario who is a registered nurse and holds an extended certificate of registration in accordance with O Reg 275/94 made under the Nursing Act, 1991, SO 1991, c 32. These individuals are generally known as nurse practitioners.

In the prescribed circumstances, a member of a prescribed class of health practitioners. At the time of writing, there are no prescribed circumstances or prescribed classes of health practitioners.

Week

“Week” means a period of seven consecutive days beginning on Sunday and ending on Saturday. For the purposes of family medical leave, week will always be Sunday to Saturday, even if the employer's work week is different. A Sunday to Saturday week was chosen in order to mirror the Compassionate Care Benefits Program in the Employment Insurance Act, SC 1996, c 23 which uses a Sunday to Saturday week for purposes of determining entitlement to, and the paying of, employment insurance benefits.

Entitlement to leave – section 49.1(2)

Subsection 49.1(2) provides for an entitlement to family medical leave if the eligibility requirements set out in the subsection are met.

Please note that the Fair Workplaces, Better Jobs Act, 2017, SO 2017, c 22 made amendments to s. 49.1(2) of the Employment Standards Act, 2000 on January 1, 2018. These changes, among other things, affected the length of leave and the leave period. See s. 49.1(13) below for more information on how this provision applies to leaves taken with respect to certificates issued prior to January 1, 2018.

The entitlement

Of up to 28 weeks

Employees are entitled to take up to 28 weeks of unpaid family medical leave with respect to a particular individual. Week is defined in s. 49.1(1) as being a period of seven consecutive days beginning on Sunday and ending on Saturday.

Must the weeks of family medical leave be consecutive?

Nothing in the ESA 2000 requires that the weeks of family medical leave be taken consecutively. An employee could, for example, take four weeks of leave, return to work for a while, and then take a further six weeks of leave.

Where an employee provides care or support for only part of a week

Subsection 49.1(7) states that family medical leave must be taken in periods of entire weeks. However, the subsection must be read in conjunction with ESA Part XIV, s. 52.1, which applies to any Part XIV leave that must be taken in periods of entire weeks and which addresses the situation where an employee stops providing care or support part-way through a week. Further, the Program has a policy that addresses the situation where an employee only begins providing care or support part-way through a week. Subsection 49.1(7) below contains a detailed discussion of how s. 49.1(7), s. 52.1 and the Program policy apply where an employee who takes family medical leave provides care or support for only part of a week. Briefly, the combined effect of the two statutory provisions and the Program policy is as follows:

The first day of any particular week, which is defined to be Sunday to Saturday, that an employee is entitled to start a family medical leave is the first day of that week that they are providing care or support;
The employer cannot require the employee to take leave on days of the week prior to the day the employee first started providing care or support;
The employee is considered to have used up a week of their 28-week entitlement even if they are not on leave for the entire week.

Sharing the leave

Section 49.1(6) provides that where more than one employee takes a leave under s. 49.1 in respect of the same family member, the maximum 28 weeks' leave has to be shared by the employees.

Further leaves

Section 49.1(11) provides that employees may take multiple family medical leaves with respect to the same family member if the eligibility criteria are met. However, only one leave of up to 28 weeks may be taken in each 52-week period with respect to the same family member.

An employee is entitled to up to 28 weeks (or more, if the further leave provision of s. 49.1(11) applies) of family medical leave with respect to each individual listed in s. 49.1(3). There is no limit on the number of specified family members for whom an employee may take family medical leave. If, for example, an employee has two specified family members who have a serious medical condition and significant risk of death within a 26-week period, the employee will be entitled to two separate family medical leaves. The timing and duration of each leave, the notice requirements, and the rules regarding eligibility for further leaves with respect to each leave, etc., are governed by s. 49.1 independently of one other.

To provide care or support

The family medical leave entitlement is for providing care or support to the ill family member. This will include, for example, providing psychological or emotional support to the family member, assisting the family member to get their affairs in order, assisting the family member with regular household chores (e.g., housekeeping, laundry, shopping) as well as arranging for care by a third party provider, and directly providing or participating in the personal care of the family member.

To an individual described in subsection (3)

Employees are entitled to family medical leave with respect to the family members listed in s. 49.1(3).

Eligibility criteria

Qualified health practitioner issues a certificate

An employee is eligible for family medical leave if a qualified health practitioner issues a certificate stating that the individual has a serious medical condition with a significant risk of death occurring within a period of 26 weeks or such shorter period as may be prescribed.

Qualified health practitioner

See the discussion of the meaning of this term in the family medical leave context in s. 49.1(1) above.

Issues a certificate

Because s. 49.1(2) uses the present tense — "issues" as opposed to "has issued" — an employee may begin a family medical leave before a certificate is issued.

For example, an employee might obtain the certificate soon after beginning the leave, or after the leave is over, or - if the employer engages in a reprisal against the employee – soon after the reprisal or when asked to by an employment standards officer during the course of a reprisal investigation. Or, an employee may have had a certificate completed by someone who fits within the definition of a qualified health practitioner for family caregiver leave purposes (but not within the narrower definition of that term that applies for family medical leave purposes) and having recognized their mistake during the officer's investigation, subsequently obtained a certificate from the appropriate individual. In all of these cases, because a certificate was ultimately issued - by someone who is eligible to issue it - the employee will be considered to have fulfilled this eligibility criterion. However, if the employee never does obtain a certificate, they will obviously not have an entitlement to family medical leave.

The employee may wish to use the Ministry's "Medical Certificate to Support Entitlement to Family Caregiver Leave, Family Medical Leave, and/or Critical Illness Leave" form when obtaining the medical certificate. It is available on theMinistry of Labour's website.

If an employee is applying for Employment Insurance (“EI”) compassionate care benefits, a copy of the medical certificate submitted to Employment and Social Development Canada may also be used for the purposes of family medical leave.

26 weeks or such shorter period as may be prescribed

Pursuant to the definition of week in s. 49.1(1), the 26-week period relating to the significant risk of death will always begin on a Sunday.

If the certificate states that the significant risk of death began on a day other than a Sunday, the 26-week period will begin on the previous Sunday.

For example, if a doctor issues a certificate on Wednesday, June 30, stating that the employee's mother has a serious medical condition and is at significant risk of death within 26 weeks from that date, the 26 week period actually begins on Sunday, June 27, and ends 26 weeks later. The definition of week has implications for when the leave can begin, and the latest date the employee can remain on leave. See ss. 49.1(4) and (5), discussed below.

Note in particular that because the 26-week period begins on the previous Sunday when a certificate states the significant risk of death began on a day other than a Sunday, an employee is eligible for family medical leave immediately upon the significant risk of death arising; they do not have to wait until the next Sunday before beginning family medical leave.

Another example is where the doctor issues the certificate on Saturday, July 10, indicating the employee's father has a serious medical condition and was at significant risk of death from Wednesday, June 30. In this case, the 26-week period begins on Sunday, June 27.

There may be cases in which the certificate indicates that the individual has a serious medical condition with a significant risk of death occurring within a period that is less than 26 weeks. For example, a doctor issues a certificate on Sunday, June 27 stating that the employee's spouse has a serious medical condition and is at significant risk of death within six weeks of that date. It is Program policy to apply the certificate as if it said that the spouse was at significant risk of death within 26 weeks. The employee will not be required to obtain a second certificate if the six week period elapses and the spouse is still alive.

This is because the Program takes the view that the reference to 26 weeks in s. 49.1(2) is intended simply to provide a maximum period in which a risk of death will entitle an employee to family medical leave and not to limit the period in which leave can be taken where the health practitioner anticipates that the individual will die sooner than 26 weeks from the date of the diagnosis/prognosis. The point, in other words, is that the entitlement to family medical leave is based on a reasonably imminent risk of death and not on any particular date specified by the practitioner, so long as the date is within 26 weeks.

Also note the effect of s. 49.1(5) which sets out the latest day an employee can remain on leave. This is either the last day of the week in which the employee’s family member dies, or the last day of a 52 week period starting on the first day of the week in which the 26-week period referred to in s. 49.1(2) begins. Continuing with the example from above, assume that the spouse did not die within six weeks of the date indicated on the certificate; he died 40 weeks after the date indicated on the certificate. The latest date the employee can remain on leave (assuming the employee has not yet used up the full 28 week entitlement), is, pursuant to s. 49.1(5), the last day of the 40th week in the 52-week period, which, in this example, began on Sunday, June 27. If the spouse did not die, the latest date the employee could be on leave pursuant to the same certificate would be Saturday, June 25 of the following year. Note that in both cases, the employee would not be required to get a new certificate within the 52-week period running from the first day of the week in which the original certificate was issued, even if the spouse lived past the original period of 26 weeks established by the certificate – see section 49.1(5.1).

This policy also has implications for determining when the further leave provision of s. 49.1(11) can be engaged. Assume, in this same example, that the spouse did not die within six weeks of the date indicated on the certificate, and was still alive after 52 weeks. The employee would be required to wait until the end of that first 52-week period before a second certificate could be issued that would make the employee eligible for a second 28 weeks of leave. See section 49.1(11) below.

At the time of writing, no shorter period than 26 weeks has been prescribed.

Application of subsection (2) – section 49.1(3)

49.1(3) Subsection (2) applies in respect of the following individuals:

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.
Any individual prescribed as a family member for the purpose of this section.

This section lists the individuals, referred to in s. 49.1(2), for whom an employee is entitled to take a family medical leave.

The list is exhaustive. If the person is not listed in s. 49.1(3), the employee has no entitlement to family medical leave.

At the time of writing, no additional family members have been prescribed.

Employees who wish to access family medical leave employment insurance benefits for a person that is “like a family member” may be required to submit a document to the federal government from the ill individual attesting that the person consider the employee to be like a family member. Pursuant to Ontario Regulation 535/17, section 1, employees wishing to take family medical leave for a person who considers the employee to be like a family member must provide their employer at the employer's request with a copy of this document. At the time of writing, the document required by the federal government was the Compassionate Care Benefits Attestation form, which is available from Employment and Social Development Canada (“ESDC”). However, whether or not the employee is applying for EI benefits or required to submit the form for EI purposes does not affect the requirement to provide it for family medical leave purposes under the ESA 2000.

Employees wishing to take a family medical leave to provide care or support to any other family member specified in s. 49.1(3) are not required to provide their employer with a completed attestation form.

Note that spouse includes married same-sex couples, married opposite-sex couples, and couples of the same or opposite sex who live together in a conjugal relationship outside marriage – see the definition of spouse and the discussion at Employment Standards Act Part XIV, section 45.

Also note that the family members specified for the purposes of section 49.1(2) in section 49.1(3) do not have to live in Ontario in order for the employee to be eligible for family medical leave.

Earliest date leave can begin – section 49.1(4)

This provision establishes the earliest date a family medical leave can begin.

The earliest date family medical leave can begin is the first day of the week in which the 26-week period referred to in s. 49.1(2) begins; that is, the first day of the 26-week period within which the family member has a significant risk of dying. Pursuant to the definition of week in s. 49.1(1), the first day of the 26-week period referred to in s. 49.1(2) will always be Sunday.

Another example is where the doctor issues the certificate on Saturday, July 10, indicating that an individual (who is the employee's father) has a serious medical condition and was at significant risk of death from Wednesday, June 30. In this case, the 26-week period referred to in s. 49.1(2) also begins on Sunday, June 27. Accordingly, the earliest date the employee's leave can begin is also Sunday, June 27.

Latest date employee can remain on leave – section 49.1(5)

This provision establishes the latest date an employee can remain on family medical leave. It must be read in conjunction with s. 49.1(2) and (6), which determine the maximum length of the leave. It may also be read in conjunction with section 49.1(5.1) which provides clarifying information about the certificate requirement.

The latest date an employee can remain on family medical leave is the earlier of:

The last day of the week in which the family member dies; and
The last day of the 52-week period that starts on the first day of the week in which the 26-week period specified by s. 49.1(2) begins.

The last day in either case will always be a Saturday, pursuant to the definition of week in s. 49.1(1).

The following examples illustrate the application of s. 49.1(5).

Example 1

A doctor issues a certificate on Wednesday, June 23, stating that the employee's mother has a serious medical condition and is at significant risk of death within 26 weeks from that date.

The 52-week period begins on Sunday, June 20, and ends 52 weeks later, which is Saturday, June 18.

The mother dies on Tuesday, November 16.

The latest date the employee can remain on leave is Saturday, November 20. Further, pursuant to s. 52.1, if the employee was on leave during the week that started Sunday, November 14, the employee is allowed to return to work before Saturday, November 20 only if the employer agrees (whether or not in writing). See Employment Standards Act, Part XIV, section 52.1 for a discussion.

Example 2

A doctor issues a certificate on Wednesday, June 23, stating that the employee's mother has a serious medical condition and is at significant risk of death within 26 weeks from that date.

The 52-week period begins on Sunday, June 20 and ends 52 weeks later, on Saturday June 18.

The mother is still alive on January 1 (28 weeks after the issuance of the first certificate).

The latest date the employee can remain on leave is Saturday, June 18. The employee does not need to arrange for a new certificate to be issued at the end of the original 26-week period specified in the certificate and remains eligible to be on leave for the duration of the 52-week period, until such point as the entire 28 week entitlement of leave is used – see section 49.1(5.1)

Example 3

A doctor issues a certificate on Saturday, July 10, indicating that the employee's father has a serious medical condition and was at significant risk of death from Wednesday, June 23

The 52-week period begins on Sunday, June 20, and ends 52 weeks later, on Saturday, June 18.

The father is still alive on Saturday, June 18.

The latest date the employee can remain on leave is Saturday, June 18.

Note, however, that after June 18, the employee may be entitled to a further leave – see ection 49.1(11), discussed below.

Same – section 49.1(5.1)

This subsection clarifies that it is not necessary for an employee to arrange for a qualified health practitioner to issue a second certificate within the same 52-week period running from the issuance of the first certificate, if all the requirements for the leave continue to be met, e.g., the ill family member is still alive, still has a serious medical condition and a significant risk of death, and the employee has not yet used the maximum entitlement of 28 weeks of leave.

Two or more employees – section 49.1(6)

This section provides that where more than one employee takes family medical leave under s. 49.1 with respect to the same family member, the 28 week leave entitlement must be shared by the employees.

There is no requirement that the employees who are sharing the leave entitlement be on leave at the same time, or at different times; the Employment Standards Act, 2000 does not impose any restrictions in this regard.

Note that the entire weeks provisions of s. 49.1(7) and section 52.1(2) also apply in the context of section 49.1(6). If one of the employees sharing the leave entitlement takes only three days off in one week, that employee is deemed to have taken an entire week of leave, thereby reducing the total number of weeks of leave remaining for all employees who are taking leave for the same family member by one week.

Note also that the sharing requirement applies only where two or more employees take leave under this section, i.e., section 49.1. An employee who takes a leave similar to family medical leave pursuant to a contractual provision that provides a greater right than s. 49.1, and which thus prevails over s. 49.1 under Employment Standards Act Part III, section 5(2), is not taking leave under this section; therefore the amount of leave that that employee takes does not reduce the amount of leave that other employees can take in respect of the same family member under s. 49.1. Likewise, an employee who takes a leave similar to Employment Standards Act, 2000 family medical leave pursuant to the employment standards legislation of another jurisdiction is not taking leave under this section. Thus, if a father facing a significant risk of death within 26 weeks has one child in Ontario and another child in Manitoba, any leave taken by the latter under Manitoba's legislation to provide care or support to the father would not affect the amount of leave available to the child in Ontario.

Subsection 49.1(6) also provides that where more than one certificate is issued by a qualified health practitioner(s) with respect to the same individual and the certificates set out different 26-week periods, the 26-week that defines the start of the 52-week period within which leave may be taken will be the one specified in the first certificate that was issued.

Full-week periods – section 49.1(7)

This provision must be read in conjunction with s. 49.1(1), which defines week as seven consecutive days beginning on Sunday and ending on Saturday, and with s. 52.1, which was introduced into the ESA 2000 effective October 29, 2014 and which states:

While there is no requirement that the 28 weeks of family medical leave that an employee is entitled to be taken consecutively, s. 49.1(7) does specify that the leave must be taken in periods of entire weeks.

Despite this entire weeks requirement, the Program's view prior to the coming-into-force of Employment Standards Act Part XIV, section 52.1 on October 29, 2014 was that the right to be on leave was contingent on the employee actually providing care or support to the ill family member; this meant that if an employee was not providing care or support for some part of a week, the employee had no right to be on leave during that part and they were both required to be and entitled to be at work during that part. Thus, if an employee was only going to begin providing care or support on, say, a Wednesday, they had no right to begin their leave before Wednesday and the employer could not require him or her to start the leave before that day. Likewise, if an employee who was on leave stopped providing care or support after, say, Tuesday, they had no right to stay on leave after Tuesday; they had no right to continue on leave after that day and the employer could insist that they return to work for the rest of the week. Notwithstanding this, the Program took the position that because of the section 49.1(7) entire weeks requirement, the employee in these situations would be deemed to have used up one full week of their total family medical leave entitlement. However, with the coming-into-force of Employment Standards Act Part XIV, section 52.1, the Program has had to modify its position insofar as the situation where the employee who is on leave stops providing care or support part-way through a week is concerned.

Section 52.1(1) deals only with the situation where an employee who is on leave stops providing care or support at some point during a week. It does not address the situation in which an employee only begins providing care or support part-way through a week. With respect to the question as to how the section 49.1(7) requirement that the leave be taken in periods of entire weeks applies in those circumstances, the Program's view is that subject to section 52.1, the right to be on leave is dependent on the employee actually providing care or support, and since section 52.1 does not deal with the situation in which the employee only starts providing care or support part-way through the week, the employee is not entitled and cannot be required to take the leave from the start of the week. It should be noted, however, that in this situation the employee will be considered to have used up one week of their 28-week family medical leave entitlement. This is not because section 52.1(2) applies-it does not-but because of the entire weeks requirement in section 49.1(7).

Accordingly it is now Program policy that:

The first day of any particular week (which is defined to be Sunday to Saturday) that an employee is entitled to start a family medical leave is the first day of that week that they are providing care or support. Further, the employer cannot require the employee to take leave on days of the week prior to the day the employee first started providing care or support. There is no change from previous policy.
If the employee stops providing care or support before the end of a week in which they took a family medical leave, the employee is – pursuant to section 52.1(1) – entitled to be on leave until the end of the week. Furthermore, they can return to work before the end of the week only if the employer agrees. The agreement does not have to be in writing.

The employee is considered to have used up a week of their 28-week entitlement even if they are not on leave for the entire week. Note that there is no change from previous policy, based on subsection 49.1(7).

Although an employee is considered to have used up a week of their 28-week entitlement even if not actually off work for the entire week, they are entitled to be paid for the time that was actually worked, and the hours that were worked will be counted for the purposes of, among other things, determining whether or not the relevant overtime threshold has been reached or limits on hours of work per week have been exceeded.

Where an employee takes more than one single day of leave during the same week as defined in s. 49.1(1), only one week of leave will be deemed to have been used up. For example, if an employee takes a single day of leave on Tuesday, May 29, wants to and is permitted by the employer to return to work on May 30 and 31, and takes another single day of leave on Friday, June 1, only one week will be deemed to have been used up, because those two days fell within the same week.

Greater right or benefit

An issue arises as to whether an employer has the option of not deeming an entire week of leave to be used up when an employee is away from work for only part of a week. The employment standard provides that a full week of leave will be charged against the employee's 28-week entitlement. However, pursuant to the greater right or benefit provision of Employment Standards Act Part III, section 5(2), if what the employer provides amounts to a greater right or benefit than the employment standard, then what the employer provides will supplant the employment standard and will apply instead of the employment standard. Accordingly, the employer is not prevented from charging only part weeks' leave against the employee's 28-week entitlement if the entire family medical leave package provided by the employer amounts to a better deal for the employee than s. 49.1.

Advising employer – subsection 49.1(8), (9)

Subsection 49.1(8) requires employees to tell their employers ahead of time that they will be taking family medical leave. In circumstances where that cannot be done, s. 49.1(9) requires the employee to tell the employer as soon as possible after beginning the leave. In either case, this must be done in writing. Note that the ESA 2000 does not require the employee to specify a return date.

The requirement to advise the employer in writing applies with respect to each part of their 28-week leave.

Example 1

An employee takes the available 28-week leave in four separate blocks: six weeks, ten weeks, and two further blocks of six weeks each. The employee is required to advise the employer in writing that they will be taking leave before (or as soon as possible after, if the notice cannot be given before the leave begins) each individual block of leave begins. The notice can be given at four separate times - once before each individual block (or, if notice cannot be given ahead of time, as soon as possible after the beginning of each block). Or, if the employee knows the start dates of all of the individual blocks of leave ahead of time, a single written notice setting out the dates would meet this requirement.

Example 2

An employee takes eight one-day leaves. The employee must advise the employer in writing before (or as soon as possible after) each single day of leave is taken. This is so even if some of the single days are taken in the same we. The notice can be given at separate times, or, if the employee knows the start dates of more than one single day of leave ahead of time, a single notice setting out the multiple dates is sufficient notice for each of those dates.

Failure to advise employer

An employee does not lose their right to family medical leave if they fail to comply with ss. 49.1(8) or (9). An employee's entitlement to family medical leave arises by virtue of meeting the eligibility criteria in s. 49.1(2), and it is the Program's position that the failure to advise the employer before or as soon as possible after the leave begins does not negate that entitlement. This approach is consistent with the Program's long-standing policy for all leaves contained in Part XIV where the structure of the entitlement and notice provisions are similar to these. See for example ESA Part XIV, ss. 46(4), 48(4) and 50(3) and (4).

The question may arise as to whether an employer can penalize an employee for failing to give advance notice that they will be absent from work (as may be required under an employer policy), where the time off is a family medical leave under the ESA 2000. Section 49.1(9) provides that if the employee must begin the leave before advising the employer, the employee shall advise the employer of the leave in writing as soon as possible after beginning it. It is thus clear that the ESA 2000 contemplates that circumstances may arise where the employee would be unable to advise the employer in advance of starting family medical leave and that the employee nevertheless has the right to take the leave in such circumstances (although the employee does have an obligation to advise the employer of the leave as soon as possible after starting it). On the other hand, the failure to give notice in advance of taking leave when the employee could have done so can be the subject of disciplinary action by the employer without violating s. 74. However the following points should be borne in mind:

The employee's failure to give advance notice does not nullify the right to take the family medical leave if the qualifying conditions in s. 49.1(2) have been met. In other words, the failure to give advance notice does not have the result that the time taken off by the employee is not family medical leave.
An employer may impose discipline where the employee failed to provide advance notice even though the employee could have done so; however, the reason for the discipline must be because of the failure to give advance notice and not because the employee exercised the right to take leave.
Likewise, an employer may impose discipline if an employee fails to provide any notice of the leave (before or after the start of the leave); however, the reason for the discipline would have to be because of the failure to provide notice and not because the employee exercised the right to take leave.

Copy of certificate – section 49.1(10)

This section provides that if the employer asks the employee for a copy of the certificate referred to in s. 49.1(2), the employee is required to provide it to the employer as soon as possible.

The certificate referred to in section 49.1(2) is the certificate issued by a qualified health practitioner that states that an individual has a serious medical condition with a significant risk of death occurring within a period of 26 weeks – see section 49.1(2) above.

An employee's failure to conform to the statutory requirement to provide a copy of the certificate does not disentitle him or her to the family medical leave. It is the Program's view that the requirement to provide a copy of the certificate is not a condition precedent to the entitlement to family medical leave; the conditions for entitlement are set out in section 49.1(2). However, as provided in section 49.1(2), in order to be entitled to the leave, the employee must obtain a certificate. The leave may begin before the certificate is obtained, but the employee must eventually obtain a certificate in order to be entitled to the leave. If they do not eventually obtain a certificate, they are not entitled to the leave.

Further leave – section 49.1(11)

This section provides for the right of an employee to take a further family medical leave of up to 28 weeks if the family member does not die within the 52-week period referred to in section 49.1(2).

For example, a doctor issues a certificate on Wednesday, June 30, stating that an individual (who is the employee's mother) has a serious medical condition and is at significant risk of death within 26 weeks from that date. Pursuant to section 49.1(2), the 52-week period begins on Sunday, June 27, and ends 52 weeks later, which is Saturday, June 25. The employee takes a 28-week family medical leave from July to February. The mother is still alive on Sunday, June 26. As of June 26, the employee may be entitled to take a second family medical leave of up to 28 weeks, if the eligibility criteria of section 49.1(2) are again satisfied by the employee. In particular, the employee will again be required to obtain a certificate from a qualified health practitioner stating that the mother has a serious medical condition with a significant risk of death occurring within a period of 26 weeks.

An employee could be entitled to a third, fourth, etc. family medical leave of up to 28 weeks after the expiry of each 52-week period, so long as the employee satisfies the eligibility criteria of section 49.1(2) a third, fourth, et cetera time.

This section also stipulates what happens where there is a further leave where:

The 28 weeks of family medical leave are shared between more than one employee pursuant to section 49.1(6);
There is more than one certificate issued with respect to the further 52-week period; and
The certificates contain different dates respecting the 26-week period in which the family member has a significant risk of dying.

In this case, the 52-week period (which establishes the period during which the leave may be taken) for the purposes of the further leave will be determined using the first certificate that was issued after the end of the first 52-week period.

Section 49.1(12) – Repealed

Transition – section 49.1(13)

The Fair Workplaces, Better Jobs Act, 2017, SO 2017, c 22 amended section 49.1 on January 1, 2018. Among other changes, the amendments extended the maximum period of family medical leave from eight weeks to 28 weeks. The timeframe within which the weeks of leave may be taken was also extended from 26 to 52 weeks.

Subsection 49.1(13) sets out transitional rules that apply with respect to the January 1, 2018 amendments. If an employee is relying on a certificate issued prior to January 1, 2018 to support their entitlement to a leave, then section 49.1 as it read on December 31, 2017 will apply to that employee. If an employee is relying on a certificate issued on or after January 1, 2018, the current provisions apply.

Section 49.2 – Organ donor leave

Definitions – section 49.2(1)

This section contains definitions of four terms that are used in the organ donor leave provisions.

"Legally qualified medical practitioner" is referred to in subsection 49.2(4), 49.2(6) and 49.2(8). Where the surgery for the purpose of organ donation is taking place in Ontario, doctors who are members of the College of Physicians and Surgeons of Ontario are the only individuals who fall within the definition of legally qualified medical practitioner. Where the surgery takes place outside of Ontario, persons who are qualified to practise medicine under the laws of that jurisdiction are the only individuals who fall within the definition of legally qualified medical practitioner.

"Organ" for the purposes of organ donor leave is defined as the kidney, liver, lung, pancreas, small bowel or any other organ that is prescribed for the purpose of this section. At the time of writing, there are no other organs prescribed.

"Organ donation" for the purposes of organ donor leave includes the donation of all or part of an organ to a person.

"Prescribed" means prescribed by a regulation made under section 49.2 regarding organ donor leave.

Application to prescribed tissue – section 49.2(2)

This section provides that references to "organ" in the organ donor leave provisions would also apply to tissue that is prescribed by regulation for the purposes of these provisions. At the time of writing, there are no prescribed tissues.

Entitlement to leave – section 49.2(3)

To be eligible for organ donor leave, the employee has to have been employed for at least 13 weeks prior to the commencement of the leave and undergo surgery for the purpose of organ donation. It is not necessary that the employee be actively working for all or any part of the 13 weeks prior to commencing the leave. For example, the employee could be off receiving short-term disability benefits, on a Part XIV leave, on vacation or on lay-off during the qualifying period.

In addition, to be eligible for the leave, the employee must be undergoing surgery for the purpose of organ donation which includes the donation of all or part of an organ to a person. For the purposes of organ donor leave, "organ" has been defined as the kidney, liver, lung, pancreas, small bowel or any other organ that is prescribed for the purpose of this section. As of the time of writing, no other organs have been prescribed.

Certificate – section 49.2(4)

If requested by the employer, an employee who takes an organ donor leave would have to provide a certificate issued by a legally qualified medical practitioner confirming that the employee will be undergoing or has undergone surgery for the purpose of organ donation.

See discussion of the term "legally qualified medical practitioner" in subsection (1) above.

Length of leave – section 49.2(5)

Eligible employees are entitled to take a period of up to 13 weeks of unpaid organ donor leave. As with parental leave, Program policy is that employees must take organ donor leave in one continuous period. There is a regulation making authority to vary the maximum leave period and to prescribe different leave periods with respect to the donation of different organs and prescribed tissue. At the time of writing, there are no other leave periods prescribed.

Extended leave – section 49.2(6)

This subsection provides for the right of an employee to extend the organ donor leave, subject to s. 49.2(7), if the employee is not yet able to perform the duties of his or her position because of the organ donation. In order to extend the leave, the employee is required to obtain a certificate from a legally qualified medical practitioner stating that he or she is not yet able to perform the duties of his or her position because of the organ donation and will not be able to do so for a specified period of time. The length of the extension to organ donor leave is subject to s. 49.2(7).

Same – section 49.2(7)

Subsection 49.2(7) permits the original organ donor leave period to be extended more than once for medical reasons, however the total extension period cannot exceed 13 weeks. For example, an employee is near the end of the original 13 weeks of organ donor leave and has not fully recovered from the organ donation to perform the duties of her position. The employee will be able to extend her leave, if her doctor, who is a member of the College of Physicians and Surgeons of Ontario, issues a certificate stating that she is not yet able to perform the duties of her position because of the organ donation and will not be able to do so for a period of time. If at the end of the additional period of time of organ donor leave, the employee is still unable to perform the duties of her position, the leave may again be extended if her doctor issues another certificate. However, the total period of time for these extensions cannot exceed 13 weeks. Therefore, where the leave is extended, the maximum amount of time allowed for organ donor leave is 26 weeks in total.

When leave begins – section 49.2(8)

Generally, organ donor leave will begin on the date of the surgery but it may begin on an earlier date as specified in a certificate issued by a legally qualified medical practitioner.

When leave ends – section 49.2(9)

Subject to section 49.2(10) (where an employee extends the leave in accordance with subsection 49.2(6)) and 49.2(11) which set out where an employee may end the leave early), organ donor leave will end when the prescribed period has expired or 13 weeks after it began. At the time of writing, there are no other leave periods prescribed. Therefore, organ donor leave will end 13 weeks after it began, subject to subsection 49.2(10) and 49.2(11).

Same – section 49.2(10)

If an employee has extended an organ donor leave in accordance with section 49.2(6), the leave would end the earlier of:

The end of the specified time in the most recent certificate that confirmed that the employee was not yet able to perform the duties of his or her position because of the organ donation;
If no period for the leave has been prescribed, 26 weeks after the leave began; or
If a period for the leave has been prescribed, 13 weeks after the end of the prescribed period.

At the time of writing, there have been no leave periods that have been prescribed. Therefore, where there has been an extension to organ donor leave, the leave would end on the earlier of the day specified in the most recent medical certificate or 26 weeks after the leave began.

Ending leave early – section 49.2(11)

Section 49.2(11) provides that organ donor leave may end earlier than provided in section 49.2(9) or section 49.2(10) if the employee gives the employer at least two weeks' written notice before the day the employee wishes to end the leave.

In contrast to the Program's position with respect to the notice requirements to commence the leave, the Program's position is that the employer can refuse to allow the employee to return to work earlier than the date provided for in section 49.2(9) or 49.2(10) if the employee has not given the employer two weeks' notice in writing.

Advising employer – subsection 49.2(12), (13)

An employee who wishes to take organ donor leave or wishes to extend an organ donor leave is required to give at least two weeks' notice in writing to the employer of his or her intention to take or extend an organ donor leave. In circumstances where that cannot be done, the employee is required, pursuant to s. 49.2(13), to advise the employer as soon as possible after beginning or extending the leave.

The employee is required to advise the employer in writing.

The Employment Standards Act, 2000 requires that the employee advise the employer that he or she will be beginning or extending a leave; it does not require the employee to specify a return date.

An employee does not lose his or her right to organ donor leave if he or she fails to comply with ss. 49.2(12) or (13). An employee's entitlement to organ donor leave arises by virtue of meeting the eligibility criteria in s. 49.2(3), and it is the Program's position that the failure to advise the employer before or as soon as possible after the leave begins or is extended does not negate that entitlement. This approach is consistent with the Program's long-standing policy for all leaves contained in Part XIV where the structure of the entitlement and notice provisions is similar to those relating to organ donor leave. See for example, Employment Standards Act, Part XIV, section 46(4) and section 48(4).

Duty to provide certificate – section 49.2(14)

This section provides that if the employer requires a certificate referred to in subsection 49.2(4), (6) or (8), the employee is required to provide it to the employer as soon as possible.

The certificate referred to in ss. 49.2(4), (6) or (8), is the certificate issued by a legally qualified medical practitioner as defined in s. 49.2(1) stating either:

That the employee has undergone or will undergo surgery for the purpose of organ donation;
That the employee is not yet able to perform the duties of his or her position because of the organ donation and will not be able to do so for a specified period of time; or
That the employee is to start an organ donor leave on an earlier date specified by a legally qualified medical practitioner before the surgery.

An employee's failure to conform to the statutory requirement to provide a copy of the certificate does not disentitle him or her to the organ donor leave. It is the Program's view that the requirement to provide a certificate is not a condition precedent to the entitlement to organ donor leave; the conditions for entitlement are set out in section 49.2(3).

Section 49.2(15) – Repealed

Section 49.3 – Family caregiver leave

Definitions – section 49.3(1)

Qualified health practitioner

Where care or treatment is provided in Ontario:

"A person who is qualified to practise as a physician" means a member of the College of Physicians and Surgeons of Ontario (this includes psychiatrists);
"A person who is qualified to practise as a registered nurse" means a member of the College of Nurses of Ontario who holds a general or extended certificate of registration as a registered nurse in accordance with Ontario Regulation 275/94 made under the Nursing Act, 1991, SO 1991, c 32, (nurse practitioners hold extended certificates); and
"A person who is qualified to practise as a psychologist" means an individual who is a member of the College of Psychologists of Ontario.

Where care or treatment is provided in a jurisdiction other than Ontario, the question of whether the person providing it is a qualified health practitioner is determined with reference to the laws of that other jurisdiction.

At the time of writing, there are no prescribed circumstances or prescribed classes of health practitioners.

Week

"Week" means a period of seven consecutive days beginning on Sunday and ending on Saturday. For the purposes of family caregiver leave, week will always be Sunday to Saturday, even if the employer's work week is different.

Entitlement to leave – section 49.3(2); Serious medical condition – section 49.3(3); Same – section 49.3(4)

These subsections provide for an entitlement to family caregiver leave if the eligibility requirements set out in the subsections are met.

The entitlement

Up to eight weeks … in each calendar year with respect to each specified family member

Employees are entitled to take up to eight weeks of family caregiver leave in each calendar year with respect to each specified family member. Week is defined in section 49.3(1) as being a period of seven consecutive days beginning on Sunday and ending on Saturday.

Nothing in the Employment Standards Act, 2000 requires that the weeks of family caregiver leave be taken consecutively. Further, unlike the case with family medical leave, the Employment Standards Act, 2000 does not require that family caregiver leave be taken in periods of entire weeks. However, where an employee takes any part of a week as leave, section 49.3(7.1) permits the employer to deem the employee to have taken one full week of leave. In other words, there are eight weeks in which the employee may take leave and thus where an employee takes any time off during a week as family caregiver leave – even as little as one day – they may be considered to have used up one week of their eight weeks of entitlement.

Additionally, because the Employment Standards Act, 2000 does not require that family caregiver leave be taken in periods of entire weeks, Employment Standards Act Part XIV, section 52.1 – which applies only to leaves that must be taken in entire weeks – does not apply.

Section 52.1, which applies to family medical leave (since that leave must be taken in periods of entire weeks) provides that an employee who ceases to provide care or support before the end of a week is entitled to stay on family medical leave for the rest of the week, and can return to work before the end of the week only if the employer agrees. In contrast, in the case of family caregiver leave, because section 52.1 does not apply, an employee who ceases to provide care or support before the end of a week is required to return to work and the employer has no right to prevent the employee from returning to work.

Accordingly, it is Program policy that the entitlement to family caregiver leave is as follows:

There are eight weeks in each calendar year in which an employee is entitled to be on leave with respect to each individual listed in section 49.3(5);
The eight weeks in which leave is taken can be consecutive, or they can be separated;
The employee may take leave for periods less than a full week (for example, single days, at the beginning, middle, or end of a week), but if they do, the employer may consider the employee to have used up one week of their eight-week entitlement. If the employee is on leave for two or more periods within the same week (e.g., on leave on Monday and on Thursday of the same week), only one week of the eight-week entitlement may be deemed to be used up;
The employee is entitled to be on leave only when the employee is providing care or support to an individual listed in section 49.3(5); and
The employer cannot require the employee to take an entire week of leave, cannot prevent the employee from working prior to taking a single day(s) of leave during a week, and cannot prevent the employee from returning to work after a single day(s) of leave during the week.

There is no limit on the number of family members for whom family caregiver leave can be taken per calendar year. If, for example, an employee has two specified family members who have a serious medical condition, the employee will be entitled to two family caregiver leaves of up to eight weeks each. The timing and duration of each leave, the notice requirements, etc., are governed by section 49.3 independently of one other.

Note that the Employment Standards Act, 2000 does not require that family caregiver leave entitlements be pro-rated for part-time employees or employees who started their employment partway through a calendar year.

When a new calendar year starts on a day other than a Sunday

Because week is defined as running from Sunday to Saturday, the question arises as to how to attribute family caregiver leave absences when a week crosses over into the next calendar year. Specifically, what happens if an employee is on a family caregiver leave during such a week, on at least one day before the end of the calendar year and on at least one day into the new calendar year. For example, an employee takes family caregiver leave from Sunday, December 28 to Saturday, January 3. Because the family caregiver leave entitlement is on a calendar year basis, it is Program policy that in this situation, the employee is considered to have used up one of their eight weeks of leave entitlement for the calendar year that is ending AND one of their eight weeks of leave entitlement for the calendar year that is beginning.

To provide care or support

The family caregiver leave entitlement is for providing care or support to the family member with the serious medical condition. This includes, for example, providing psychological or emotional support to the family member, assisting the family member with regular household chores (e.g., housekeeping, laundry, shopping) as well as arranging for care by a third party provider, and directly providing or participating in the personal care of the family member. Care or support also includes assisting the family member to get their affairs in order, where, for example, the family member is at risk of death.

To an individual described in subsection (5)

Employees are entitled to family caregiver leave with respect to the family members listed in section 49.3(5). See section 49.3(5) below.

Eligibility criteria

Qualified health practitioner issues a certificate

An employee is eligible for family caregiver leave if a qualified health practitioner issues a certificate stating that the individual has a serious medical condition.

Qualified health practitioner

See the discussion of this term in section 49.3(1) above.

Issues a certificate

Because section 49.3(2) uses the present tense "issues" (as opposed to "has issued"), an employee may begin a family caregiver leave before a certificate is issued.

For example, an employee might obtain the certificate soon after beginning the leave, or after the leave is over, or — if the employer engages in a reprisal against the employee – soon after the reprisal or when asked to by an employment standards officer during the course of a reprisal investigation. In all of these cases, because a certificate was ultimately issued, the employee will be considered to have fulfilled this eligibility criterion. However, if the employee never does obtain a certificate, they will not have an entitlement to family caregiver leave.

Period over which a certificate will support absences as family caregiver leave

A medical certificate will authorize absences as protected family caregiver leave absences (up to eight weeks per calendar year) from the date it is issued until the end of the calendar year in which it was issued. However, if the certificate sets out a period over which the individual has/will be expected to have a serious medical condition that is different from the period between the date it is issued to the end of the calendar year, the period set out in the certificate determines the period over which absences can be protected as family caregiver leave.

The period in the certificate could:

Protect absences that took place before the certificate was issued, including those in the prior calendar year;
Extend the period over which absences will be protected to beyond the end of the calendar year in which the certificate was issued; or
Shorten the period over which absences will be protected to prior to the end of the calendar year in which the certificate was issued.

Examples:

A certificate was issued September 1, 2017. It was silent on the date the individual's serious medical condition arose, and on the date it is expected to end. That certificate will support absences as family caregiver leave - up to eight weeks per calendar year – during the period between September 1, 2017 to December 31, 2017.
A certificate was issued January 1, 2017. It stated that the individual's serious medical condition arose on October 1, 2016 and is expected to last until April 1, 2017. That certificate will support absences as family caregiver leave as follows:
- Up to eight weeks during the period between October 1, 2016 and December 31, 2016; and
- Up to eight weeks during the period between January 1, 2017 and April 1, 2017.
A certificate was issued September 1, 2017. It was silent on the date the individual's serious medical condition arose, and states that the serious medical condition is expected to last until April 1, 2018. That certificate will support absences as family caregiver leave as follows:
- Up to eight weeks during the period between September 1, 2017 and December 31, 2017; and
- Up to eight weeks during the period between January 1, 2018 and April 1, 2018.

Stating that the individual has a serious medical condition

The certificate must name the individual and state that they have a serious medical condition. Pursuant to s. 49.3(3), a serious medical condition includes a condition that is chronic or episodic. There is no requirement that the note specify what the medical condition is; it need only indicate that it is "serious".

It is for the health practitioner, and no one else, to make an assessment as to whether the individual's medical condition is serious; if they issue a certificate stating that the individual has a serious medical condition, the s. 49.3(2) requirement is fulfilled. In other words, it is not an employment standards officer's role to determine whether the individual does in fact have a serious medical condition.

It is Program policy that a certificate will not satisfy the eligibility criteria if it names or describes the medical condition without explicitly stating that it is serious. Note, however, that nothing in the ESA 2000 prevents the employee in question from returning to the health practitioner and obtaining another certificate that does state that the family member concerned has a medical condition that is serious. It is Program policy that this eligibility criterion will be met if the certificate does not contain the word “serious” but instead contains words that are synonymous with the notion that the individual could die or is expected to die. Although there is no requirement that the individual be expected to die in order for the employee to have an entitlement to family caregiver leave, this policy recognizes that any illness or injury that causes or could cause the individual to die is serious. So, for example, if the certificate contains the words "life-threatening" or "terminally ill", or something else that is synonymous with the expectation that the individual could die or is expected to die, this criterion will be met.

An employee's entitlement to family caregiver leave is in addition to any entitlement the employee may have with respect to the same relative to family medical leave, critical illness leave, personal emergency leave, child death leave, crime-related child disappearance leave, and domestic or sexual violence leave. A single certificate may satisfy the requirements for a certificate under more than one leave. For example, a single certificate that indicates that a named individual has a serious medical condition with a significant risk of death occurring within a period of 26 weeks will satisfy the requirements for both family medical leave (which is available only if the individual has a serious medical condition with a significant risk of dying within 26 weeks) and family caregiver leave; an employee is not required to obtain separate certificates for each leave if the wording used in a single certificate meets the requirements for both leaves.

Application of subsection (2) – section 49.3(5)

This subsection lists the individuals for whom a family caregiver leave can be taken; the list of individuals mirrors the list of individuals with respect to whom personal emergency leave may be taken.

The list is exhaustive. If the person who has the serious medical condition is not an individual referred to in s. 49.3(5), the employee will not be entitled to take family caregiver leave in respect of that person.

The terms "parent" (which indirectly expands the ordinary meaning of child) and "spouse" are defined in ESA Part XIV, section 45.

With respect to paragraph 7, "a relative of the employee who is dependent on the employee for care or assistance" in paragraph 7, see the discussion of this phrase in Employment Standards Act Part XIV, section 50. Section 50 deals with the personal emergency leave provisions, which use the same phrase.

Paragraph 8 refers to "any individual prescribed as a family member for the purpose of this section". At the time of writing no individuals have been prescribed.

Advising employer – section 49.3(6); Same – section 49.3(7)

Section 49.3(6) requires employees to tell their employers ahead of time that they will be taking family caregiver leave. In circumstances where that cannot be done s. 49.3(7) requires the employee to tell the employer as soon as possible after beginning the leave. In both cases, the employee is required to advise the employer in writing.

The Employment Standards Act, 2000 requires that the employee advise the employer that they will be beginning a leave; it does not require the employee to specify a return date.

The requirement to advise the employer in writing applies with respect to each part of their eight-week leave.

Example 1

An employee takes the available eight-week leave in two separate four-week blocks. The employee is required to advise the employer in writing that they will be taking leave before (or as soon as possible after, if the notice cannot be given before the leave begins) each four-week block of leave begins. The notice can be given at two separate times, once before each four-week block (or, if notice cannot be given ahead of time, as soon as possible after the beginning of each four-week block). Or, if the employee knows the start dates of both four-week blocks of leave ahead of time, a single written notice setting out the dates would meet this requirement.

Example 2

An employee takes eight one-day leaves. The employee must advise the employer in writing before (or as soon as possible after) each single day of leave is taken. This is so even if some of the single days are taken in the same week. The notice can be given at separate times, or, if the employee knows the start dates of more than one single day of leave ahead of time, a single notice setting out the multiple dates is sufficient notice for each of those dates.

Failure to advise employer

An employee does not lose their right to family caregiver leave if they fail to comply with ss. 49.3(6) or (7). An employee's entitlement to family caregiver leave arises by virtue of meeting the eligibility criteria in s. 49.3(2), and it is the Program's position that the failure to advise the employer before or as soon as possible after the leave begins does not negate that entitlement. This approach is consistent with the Program's long-standing policy for all leaves contained in Part XIV where the structures of the entitlement and notice provisions are similar to these. See for example ss. 46(4) (pregnancy leave) and 48(4) (parental leave) in Part XIV.

The question may arise as to whether an employer can penalize an employee for failing to give advance notice that they will be absent from work (as may be required under an employer policy) where the time off is a family caregiver leave under the ESA 2000. Section 49.3(7) provides that "if the employee must begin the leave before advising the employer, the employee shall advise the employer of the leave in writing as soon as possible after beginning it." It is thus clear that the ESA 2000 contemplates that circumstances may arise where the employee would be unable to advise the employer in advance of starting family caregiver leave and that the employee nevertheless has a right to take the leave in such circumstances (although the employee does have an obligation to advise the employer of the leave as soon as possible after beginning it). On the other hand, the failure to give notice in advance of taking leave when the employee could have done so can be the subject of disciplinary action by the employer without violating section 74. However, the following points should be borne in mind:

The employee's failure to give advance notice does not nullify the right to take family caregiver leave if the qualifying conditions in section 49.3(2) have been met. In other words, the failure to give advance notice does not have the result that the time taken off by the employee is not family caregiver leave.
An employer may impose discipline where the employee failed to provide advance notice even though the employee could have done so; however, the reason for the discipline must be because of the failure to give advance notice and not because the employee exercised the right to take leave.
Likewise, an employer may impose discipline if an employee fails to provide any notice of the leave (before or after the start of the leave). Again, however, the reason for the discipline would have to be because of the failure to provide notice and not because the employee exercised the right to take leave.

2. Designating Absences as Family Responsibility Leave

For employees who are entitled to family responsibility leave as provided for in section 50.0.1, questions have arisen as to whether an employee who is absent from work for one of the events listed in section 50.0.1(1) in relation to a person specified in section 50.0.1(3) must use one of their three days of family responsibility leave.

Impact of Subsections (8) – (10)

Subsection (8) provides that where an employee takes a paid or unpaid leave of absence under an employment contract in circumstances for which the employee would also be entitled to take a leave under section 50.0.1, the employee is deemed to have taken a leave under section 50.0.1. Subsections (9) and (10) establish rules that apply to the deemed leave.

Accordingly, if subsections (8)-(10) apply to an absence, i.e. an employee takes paid or unpaid leave under the contract of employment in circumstances in which family responsibility leave could be taken, the employee will be deemed pursuant to subsection 50(8) to have taken ESA family responsibility leave and drawn down against the three-day section 50.0.1 entitlement. (See the discussion under subsection 50 (8)–(10) for more information regarding the impact of contractual entitlements on the statutory right to family responsibility leave.)

Result Where Subsections (8)-(10) Do not apply

On the other hand, if subsections (8)-(10) do not apply, that is, an employee who is entitled to family responsibility leave is absent due to one of the reasons listed in section 50.0.1(1) but does not take a paid or unpaid leave of absence under an employment contract for that absence (either because the employee does not have a contractual right or does not exercise it), it is the employee (not the employer) who decides whether to designate the absence as a statutory family responsibility leave.

If the employee who is entitled to family responsibility leave and who is absent from work due to one of the reasons listed in section 50.0.1(1) wishes to designate the absence as a statutory family responsibility leave, then the absence is a family responsibility leave that draws down against the three-day statutory entitlement and attracts the corresponding reprisal protections (and all of the other ancillary rights that attach to statutory leaves that are set out in subsection 51-53.1)

In the case where subsection (8)-(10) do not apply, an employee may be entitled to statutory family responsibility leave and be absent from work due to one of the reasons listed in section 50.0.1(1) in relation to a person specified in section 50.0.1(3) and decide not to claim the absence as a family responsibility leave day. This is not considered as contracting out of the Employment Standards Act, 2000 if an employee does not take advantage of their leave entitlements; the employee has merely chosen not to exercise them.

If the employee who is entitled to family responsibility leave by virtue of being absent from work due to one of the reasons listed in section 50.0.1(1) in relation to a person specified in section 50.0.1(3) does not wish to designate the absence as a family responsibility leave, and the absence cannot be considered an authorized absence on some other ground (for example, another leave under the Employment Standards Act, 2000 or vacation authorized by the employer), the absence would have no statutory reprisal protection. For this reason, an employee who takes a day off for a reason that would qualify under section 50.0.1 but who would prefer not to have the day charged against their family responsibility leave allotment may feel effectively forced into designating the day as such a leave. This in itself does not constitute any violation of the Employment Standards Act, 2000: it is not unlawful for an employer to inform an employee that should the employee not designate an absence as a statutory family responsibility leave day, then it would be considered an unexcused absence that will lead to disciplinary action.

Note that if the employee did not know of the right to take family responsibility leave, the default is that the absence is considered to be statutory family responsibility leave with the corresponding reprisal protection. An employee does not lose their right to any of the leaves provided for under the Employment Standards Act, 2000 because they were unaware of their entitlements.

Leave deemed to be taken in entire weeks – section 49.3(7.1)

The Fair Workplaces, Better Jobs Act, 2017, SO 2017, c 22 added this provision to section 49.3 on January 1, 2018.

The provision must be read in conjunction with section 49.3(1), which defines week as seven consecutive days beginning on Sunday and ending on Saturday.

Employees may not need an entire work week to provide the care or support that gave rise to the family caregiver leave, and will only take part of a week off as family caregiver leave. Section 49.3(7.1) allows an employer in this situation to count the part-week off work as an entire week's leave for the purpose of the eight-week leave entitlement. This is the only purpose for which the employer can deem the part work week as an entire week's leave. It cannot deem the employee not to have worked at all during the week. The employee is entitled to be paid for the time that was actually worked, and the hours that were worked will be counted for the purposes of, among other things, determining whether the relevant overtime threshold has been reached, whether the limits on, for example, the daily and weekly hours of work have been reached, and whether the daily, weekly/bi-weekly and in-between shifts rest requirements have been met.

Where an employee takes more than one single day of leave during the same week as defined in section 49.3(1), the employer may deem only one week of leave to have been used up. For example, if an employee takes a single day of leave on Tuesday, May 29, returns to work on May 30 and 31, and takes another single day of leave on Friday, June 1, only one week will be deemed to have been used up, because those two days fell within the same week.

Note that while this provision allows the employer to deem the employee to have taken one week of leave if the employee takes part of a week as leave, it does not require the employer to do so.

The issue may arise as to whether an employer could exercise its discretion and deem a partial week absence as a full week for some employees, but not for others, or whether this might allow employers to selectively punish employees who have too many absences in violation of the reprisal provisions of the Employment Standards Act, 2000.

The answer will depend on the facts. In particular, why did the employer treat the employees differently? Where an employer deems a full week's absence for some Employment Standards Act, 2000.

For instance, if the employer counts a one-day family caregiver leave as a full week's leave for Employee A but not for Employee B, who also takes a one-day family caregiver leave because the employer considers Employee B to be a better worker than Employee A, this might be unfair as between employee A and B, but it would not be a violation of the Employment Standards Act, 2000, as it would not be reprisal for exercising a right under the Employment Standards Act, 2000. If, on the other hand, the motivation for the differential treatment was that Employee A frequently took family caregiver leave of only a few days, and the employer assigned a full week's absence to these short leaves as a way to ensure Employee A used up all of their statutory entitlement as soon as possible because the employer found it inconvenient for the employee to be away for many short periods of time, that would be an unlawful reprisal.

Copy of certificate – section 49.3(8)

This section provides that if the employer asks the employee for a copy of the certificate referred to in section 49.3(2), the employee is required to provide it to the employer as soon as possible.

The certificate referred to in section 49.3(2) is the certificate issued by a qualified health practitioner that states that an individual has a serious medical condition.

An employee's failure to conform to the statutory requirement to provide a copy of the certificate does not disentitle him or her to the family caregiver leave. It is the Program's view that the requirement to provide a copy of the certificate is not a condition precedent to the entitlement to family caregiver leave; the conditions for entitlement are set out in section 49.3(2). However, as provided in section 49.3(2), in order to be entitled to the leave, the employee must obtain a certificate. The leave may begin before the certificate is obtained, but the employee must eventually obtain a certificate in order to be entitled to the leave. If they do not eventually obtain a certificate, they are not entitled to the leave.

Section 49.3(9) – Repealed

Section 49.4 – Critical illness leave

Definitions – section 49.4(1)

49.4(1) In this section,

“adult” means an individual who is 18 years or older;

"critically ill " ,with respect to a minor child or adult , means a minor child or adult whose baseline state of health has significantly changed and whose life is at risk as a result of an illness or injury;

“family member”, with respect to an employee, means the following;

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.
Any individual prescribed as a family member for the purpose of this definition.

“minor child” means an individual who is under 18 years of age;

"qualified health practitioner" means,

a person who is qualified to practise as a physician, a registered nurse or a psychologist under the laws of the jurisdiction in which care or treatment is provided to the individual described in subsection (2) or (5), or
in the prescribed circumstances, a member of a prescribed class of health practitioners;

"week" means a period of seven consecutive days beginning on Sunday and ending on Saturday.

This section defines six terms used in the critical illness leave provisions.

Adult

An “adult” is defined as an individual who is 18 years or older. An employee who meets the eligibility requirements in section 49.4(5) will be entitled to a leave of up to 17 weeks per section 49.4(6) to provide care or support to a critically ill adult.

Critically ill

In order for an employee to be entitled to a critical illness leave, the employee must be providing care or support to a critically ill minor child or adult who is a family member of the employee. “Minor child”, “adult” and “family member” are defined terms.

"Critically ill" is defined, with respect to a minor child or adult, to mean the minor child or adult’s baseline state of health has significantly changed and whose life is at risk as a result of an illness or injury.

"Baseline state of health" (or of wellness) is a medical term and it is for a qualified health practitioner (also a defined term) to make the assessment as to whether a minor child or adult’s "baseline state of health has significantly changed". This same phrase appears in the federal government's policy statement regarding eligibility for "special benefits" for parents of critically ill children under the Employment Insurance Act, SC 1996, c 23, and consistent with the federal government's policy. The Program takes the position that the phrase is intended to exclude a minor child or adult with a chronic illness or condition that is their normal state of health, even if that normal state is considered to be life-threatening in the medium to long term.

However, when an employment standards officer is making a determination as to whether an employee was entitled to critical illness leave, the issue with respect to the critically ill criterion is simply whether a qualified health practitioner has issued a certificate that meets the requirements of section 49.4(2) or (5); the officer does not inquire as to whether the person in question was one "whose baseline state of health has significantly changed and whose life is at risk as a result of an illness or injury". See the discussion under the heading "Stating that the minor child or adult family member is critically ill". In other words, if a qualified health practitioner has issued such a certificate, the officer does not "go behind it" and make inquiries as to whether the practitioner was actually justified in doing so.

Family member

This definition lists the individuals for whom an employee is entitled to take a critical illness leave. The list is exhaustive. If the minor child or adult is not in a relationship with the employee as listed in the definition, the employee has no entitlement to critical illness leave. Note that there are two types of critical illness leave, one for a minor child “who is a family member” of the employee, and one for an adult “who is a family member” of the employee. With respect to a critical illness leave for a minor child, the minor child does not have to be the employee’s own child in order for the employee to be entitled to the leave; for example, an employee could take a leave to care for a niece, nephew or grandchild who meets the definition of minor child (see below).

Section 49.4(1) defines the following individuals as family members:

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 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 employee's spouse;
An uncle or aunt of the employee or 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;
Any individual prescribed as a family member for the purpose of this definition.

Note that "spouse" includes married same-sex couples, married opposite-sex couples, and couples of the same or opposite sex who live together in a conjugal relationship outside marriage – see the definition of spouse and the discussion at Employment Standards Act, Part XIV, section 45.

Also note that the family members as defined by s. 49.4(1) do not have to live in Ontario in order for the employee to be eligible for critical illness leave.

With respect to “a person who considers the employee to be like a family member”, the legislation provides that if any conditions are set out in regulation, those conditions must be met. Ontario Regulation 535/17 section 1 prescribes the following condition: “the employee must, on the employer’s request, provide the employer with a copy of the document provided to an agency or department of the Government of Canada for the purpose of claiming benefits under the Employment Insurance Act (Canada) in which it is stated that the employee is considered to be like a family member.”

The employee must provide a copy of this document whether or not the employee applies or intends to apply for Employment Insurance benefits to support critical illness leave. See Ontario Regulation 535/17 section 1 for more details.

At this time, there are no additional family members that have been prescribed.

Minor child

In order to be considered a minor child for the purpose of entitlements to critical illness leave, the individual must have been under 18 years of age on the first day of the period during which the child requires care or support as indicated in the certificate issued by the qualified health practitioner. The fact that the critically ill individual turns 18 years old after the first day of this period does not extinguish the employee's right to the 37 weeks of leave. Also see subsections (13) and (14) below in this section for guidance on the situation where an employee takes a leave in relation to a minor child who turns 18 during the leave.

Qualified health practitioner

In order for an employee to be entitled to critical illness leave, a "qualified health practitioner" must issue a certificate stating that the minor child or adult is critically ill and requires the care or support of one or more family members and setting out the period during which the minor child or adult requires the care or support. The term "qualified health practitioner" is defined for the purposes of critical illness leave as:

Where care or treatment is provided in Ontario:

"A person who is qualified to practise as a physician" means a member of the College of Physicians and Surgeons of Ontario (this includes psychiatrists);
"A person who is qualified to practise as a registered nurse" means in accordance with Ontario Regulation 275/94 of the Nursing Act, 1991, SO 1991, c 32, a member of the College of Nurses of Ontario who holds a general or extended certificate of registration as a registered nurse (nurse practitioners hold extended certificates); and
"A person who is qualified to practise as a psychologist" means an individual who is a member of the College of Psychologists of Ontario.

Where care or treatment is provided in a jurisdiction other than Ontario the question of whether the person providing it is a qualified health practitioner is determined with reference to the laws of that other jurisdiction.

At the time of writing, there are no prescribed circumstances or prescribed classes of health practitioners.

Week

"Week" means a period of seven consecutive days beginning on Sunday and ending on Saturday. For the purposes of critical illness leave, week will always be Sunday to Saturday, even if the employer's work week is different.

Entitlement to leave – Critically ill minor child – section 49.4(2)

This subsection provides for an entitlement to critical illness leave in respect of a minor child if the eligibility requirements set out in the subsection are met (note the entitlement provisions with respect to a critical illness leave for an adult are set out in subsection (5) below).

1. Employed by their employer for at least six consecutive months

To be eligible for critical illness leave, the employee has to have been employed for at least six consecutive months prior to the first day of the leave. It is not necessary that the employee have been actively working for the six-month period, so long as they were an employee during this time. For example, the employee could have been off receiving short-term disability benefits, on vacation, or on layoff during this period. The employee could also be on another statutory leave, including, for example, a family caregiver leave to care for the critically ill minor child during the period.

2. To provide care or support to a critically ill minor child who is a family member of the employee

Critical illness leave under subsection (2) is for providing "care or support" to the critically ill minor child who is a family member of the employee. Care or support could include, for example, providing psychological or emotional support to the child, or providing or participating in their personal care. The care or support must be provided to a critically ill minor child (i.e. an individual under 18) who is a family member of the employee. This could be the employee’s child but is not limited to this relationship. It could be taken for any of the relationships listed in the definition of family member in s. 49.4(1) such as the employee’s grandchild, niece, nephew etc.

3. Qualified health practitioner issues a certificate

An employee is eligible for critical illness leave if a qualified health practitioner issues a certificate stating that a minor child who is a family member of the employee is critically ill and requires the care or support of one or more family members, and setting out the period during which the child requires the care or support.

a) Qualified health practitioner

See the discussion of this term at subsection (1) above.

b) Issues a certificate

Because section 49.4(2) uses the present tense "issues" (as opposed to "has issued"), an employee may begin a critical illness leave before a certificate is issued.

For example, an employee might obtain the certificate soon after beginning the leave, or after the leave is over, or — if the employer engages in a reprisal against the employee — soon after the reprisal or when asked to by an employment standards officer during the course of a reprisal investigation. In all of these cases, because a certificate ultimately was issued, the employee will be considered to have fulfilled this eligibility criterion. However, if the employee never does obtain a certificate, they will not have an entitlement to critical illness leave.

If an employee is applying for Employment Insurance (EI) benefits in respect of the same critically ill minor child, a copy of the medical certificate submitted to Employment and Social Development Canada may also be used for the purposes of critical illness leave.

c) Stating that the minor child is a critically ill minor child

The certificate must name the minor child, and indicate that they are critically ill (or, given the section 49.4(1) definition of critically ill, that they have been critically injured). There is no requirement that the certificate specify what the illness (or injury) is; it need only indicate that it is critical.

It is for the health practitioner, and no one else, to make an assessment as to whether the minor child is critically ill (see the discussion of the definition of critically ill in subsection (1) above). If they issue a certificate stating that the minor child is a critically ill (or injured) minor child, the section 49.4(2) requirement is fulfilled. In other words, it is not an employment standards officer's role to determine whether the minor child is in fact critically ill or injured.

It is Program policy that a certificate will not satisfy the eligibility criteria if it states what illness or injury the minor child has without also stating that the minor child is a critically ill or critically injured minor child (or that the illness or injury from which the minor child is suffering is critical). This is so even if the certificate names an illness or injury that sounds critical. (Note, however, that nothing in the Act prevents the employee in question from returning to the health practitioner and obtaining another certificate that does state that the minor child is a critically ill – or injured – minor child, or that the illness or injury from which the child is suffering is critical). It is Program policy that this eligibility criteria will be met if the certificate doesn’t contains the words critically ill (or critical illness) or critically injured (or critical injury) but instead contains words that are synonymous with the notion that the child's life is at risk. So, for example, if the certificate contains the words "life threatening", "terminally ill", or something else that is synonymous with the expectation that the child could die or is expected to die, this criterion will be met. Furthermore, it is Program policy that the eligibility criteria will be met if the certificate doesn’t contain the specific words minor child but instead references only a child where some other evidence is available to establish that the child is under the age of 18, or where the age of the individual is contained in the certificate and they are under 18 years of age.

An employee's entitlement to critical illness leave is in addition to any entitlement the employee may have with respect to the same child to family medical leave, family caregiver leave, personal emergency leave, and child death leave, crime-related child disappearance leave, domestic or sexual violence leave and personal emergency leave. A single certificate may satisfy the requirements for a certificate under more than one leave. An employee is not required to obtain separate certificates for each leave if the wording used in a single certificate meets the requirements for more than one leave.

c) Who requires the care or support of one or more family members

The certificate must state that the critically ill (or injured) minor child requires the care or support of at least one family member. Family member is a defined term.

e) Sets out the period during which the minor child requires the care or support

The certificate must set out the period during which the minor child requires the care or support of one or more family members. The period would typically be described by specifying a start date and an end date. However, in some cases it may not be possible to specify an end date, and in other cases it may be that the health practitioner does not foresee the child ever recovering. Recognizing this, the Program takes the position that it is acceptable if the certificate, instead of specifying an end date, states that care or support will be required indefinitely or that it will be required to the end of the minor child's life.

Same – section 49.4(3)

This subsection establishes what the critical illness leave entitlement is under subsection (2): up to 37 weeks of leave to provide care or support to the critically ill minor child who is a family member of the employee: up to 37 weeks of leave .

The subsection must be read in conjunction with section 49.4(14), which provides for additional leaves in certain circumstances.

Nothing in the Act requires that the weeks of critical illness leave be taken consecutively. Further, unlike the case with family medical leave, the Act does not require that critical illness leave be taken in periods of entire weeks. However, because the critical illness leave entitlement is expressed in terms of a number of weeks, rather than a number of days (as is the case with personal emergency leave), it is Program policy that the entitlement is that there are 37 weeks in which the employee may take leave and thus where an employee takes any time off during a week as critical illness leave – even as little as one day – they are considered to have used up one week of their 37 weeks of entitlement.

Additionally, because the Act does not require that critical illness leave be taken in periods of entire weeks, section 52.1 of the Act – which applies only to leaves that must be taken in entire weeks – does not apply. ^{footnote 2[2]}

In summary, it is Program policy that the entitlement to critical illness leave in relation to a minor child who is a family member of the employee is as follows:

There are 37 weeks (which is defined as Sunday to Saturday) in which an employee is entitled to be on critical illness leave.
The 37 weeks in which the leave may be taken can be consecutive, or they can be separated.
The employee is entitled to be on leave only when the employee is providing care or support to the critically ill minor child.
The employee may take leave for periods less than a full week (e.g. single days, at the beginning, middle, or end of a week), but if they do, they are considered to have used up one week of their 37-week entitlement. If the employee is on leave for two or more periods within the same week (e.g. on leave on Monday and on Thursday of the same week), only one week of the 37-week entitlement is used up.
The employer cannot require the employee to take an entire week of leave, cannot prevent the employee from working prior to taking a single day(s) of leave during a week, and cannot prevent the employee from returning to work after a single day(s) of leave during the week.

This subsection must be read in conjunction with other relevant subsections of s. 49.4, particularly (4)(8)(9)-(10), (16) and (19) which address the following issues/scenarios:

Subsection (4): the entitlement if the period during which the minor child requires care or support is less than 37 weeks.
Subsections (8) and (9): the latest date the employee can remain on leave.
Subsection (10): the latest date the employee can remain on leave if a minor child dies.
Subsection (16): eligibility for additional leaves.
Subsection (19): deviation from the plan originally provided to the employer setting out when leave would be taken.

Same – Period less than 37 weeks – section 49.4(4)

While subsection (3) provides that an employee is entitled to take up to 37 weeks of critical illness leave to provide care or support to a critically ill minor child, subsection (4) provides an exception where the medical certificate indicates that the number of weeks during which the minor child will require care or support is a number less than 37 weeks. In that case, the employee can only take a leave for the number of weeks indicated. (Note, however, that if the minor child is still critically ill and in need of care or support after the period specified in the certificate has expired, the employee may be eligible for a further leave pursuant to subsection (14)).

Entitlement to leave – Critically ill adult – section 49.4(5)

This subsection provides for an entitlement to critical illness leave in respect of an adult if the eligibility requirements set out in the subsection are met. (Note the entitlement provisions with respect to a critical illness leave for a minor child are set out in subsection (2) above.)

Employed by their employer for at least six consecutive months

To provide care or support to a critically ill adult who is a family member of the employee

Critical illness leave under subsection (5) is for providing care or support to the critically ill adult who is a family member of the employee. This could include, for example, providing psychological or emotional support to the adult, or providing or participating in their personal care. The list of family members for whom the employee can take the leave is set out in the definition of “family member” in subsection 49.4(1).

Qualified health practitioner issues a certificate

An employee is eligible for critical illness leave if a qualified health practitioner issues a certificate stating that an adult who is a family member of the employee is critically ill and requires the care or support of one or more family members, and setting out the period during which the adult requires the care or support.

Qualified health practitioner

See the discussion of this term at subsection (1) above.

Issues a certificate

Because section 49.4(5) uses the present tense "issues" (as opposed to "has issued"), an employee may begin a critical illness leave before a certificate is issued.

For example, an employee might obtain the certificate soon after beginning the leave, or after the leave is over, or – If the employer engages in a reprisal against the employee – soon after the reprisal or when asked to by an employment standards officer during the course of a reprisal investigation. In all of these cases, because a certificate ultimately was issued, the employee will be considered to have fulfilled this eligibility criterion. However, if the employee never does obtain a certificate, they will not have an entitlement to critical illness leave.

If an employee is applying for Employment Insurance (EI) benefits in respect of the same critically ill adult, a copy of the medical certificate submitted to Employment and Social Development Canada may also be used for the purposes of critical illness leave.

Stating that the adult is a critically ill adult

The certificate must name the adult, and indicate that they are critically ill (or, given the section 49.4(1) definition of critically ill, that they have been critically injured). There is no requirement that the certificate specify what the illness (or injury) is; it need only indicate that it is critical.

It is for the health practitioner, and no one else, to make an assessment as to whether the adult is critically ill (see the discussion of the definition of critically ill in subsection (1) above). If they issue a certificate stating that the adult is a critically ill (or injured) adult, the section 49.4(5) requirement is fulfilled. In other words, it is not an employment standards officer's role to determine whether the adult is in fact critically ill or injured.

It is Program policy that a certificate will not satisfy the eligibility criteria if it states what illness or injury the adult has without also stating that the adult is a critically ill or critically injured adult (or that the illness or injury from which the adult is suffering is critical). This is so even if the certificate names an illness or injury that sounds critical (note, however, that nothing in the Act prevents the employee in question from returning to the health practitioner and obtaining another certificate that does state that the adult is a critically ill – or injured – adult, or that the illness or injury from which the adult is suffering is critical). It is Program policy that this eligibility criteria will be met if the certificate doesn’t contains the words critically ill (or critical illness) or critically injured (or critical injury) but instead contains words that are synonymous with the notion that the adult's life is at risk. So, for example, if the certificate contains the words "life threatening", "terminally ill", or something else that is synonymous with the expectation that the adult could die or is expected to die, this criterion will be met.

An employee's entitlement to critical illness leave is in addition to any entitlement the employee may have with respect to the same adult to domestic or sexual violence leave, family medical leave, family caregiver leave or personal emergency leave. A single certificate may satisfy the requirements for a certificate under more than one leave. An employee is not required to obtain separate certificates for each leave if the wording used in a single certificate meets the requirements for more than one leave.

Who requires the care or support of one or more family members

The certificate must state that the critically ill (or injured) adult requires the care or support of at least one family member. Family member is a defined term.

Sets out the period during which the adult family member requires care or support

The certificate must set out the period during which the adult requires the care or support of one or more family members. The period would typically be described by specifying a start date and an end date. However, in some cases it may not be possible to specify an end date, and in other cases it may be that the health practitioner does not foresee the adult ever recovering. Recognizing this, the Program takes the position that it is acceptable if the certificate, instead of specifying an end date, states that care or support will be required indefinitely or that it will be required to the end of the adult’s life.

Same – section 49.4(6)

This subsection establishes what the critical illness leave entitlement is under subsection (5): up to 17 weeks of leave to provide care or support to the critically ill adult who is a family member of the employee.

The subsection must be read in conjunction with section 49.4(15), which provides for additional leaves in certain circumstances.

Nothing in the Act requires that the weeks of critical illness leave be taken consecutively. Further, unlike the case with family medical leave, the Act does not require that critical illness leave be taken in periods of entire weeks. However, because the critical illness leave entitlement is expressed in terms of a number of weeks, rather than a number of days (as is the case with personal emergency leave), it is Program policy that the entitlement is that there are 17 weeks in which the employee may take leave and thus where an employee takes any time off during a week as critical illness leave – even as little as one day – they are considered to have used up one week of their 17 weeks of entitlement.

In summary, it is Program policy that the entitlement to critical illness leave in relation to an adult who is a family member of the employee is as follows:

There are 17 weeks (which is defined as Sunday to Saturday) in which an employee is entitled to be on critical illness leave.
The 17 weeks in which the leave may be taken can be consecutive, or they can be separated.
The employee is entitled to be on leave only when the employee is providing care or support to the critically ill adult.
The employee may take leave for periods less than a full week (e.g. single days, at the beginning, middle, or end of a week), but if they do, they are considered to have used up one week of their 17-week entitlement. If the employee is on leave for two or more periods within the same week (e.g. on leave on Monday and on Thursday of the same week), only one week of the 17-week entitlement is used up.
The employer cannot require the employee to take an entire week of leave, cannot prevent the employee from working prior to taking a single day(s) of leave during a week, and cannot prevent the employee from returning to work after a single day(s) of leave during the week.

This subsection must be read in conjunction with other relevant subsections of section 49.4, particularly (7)-(10), (15) and (19) which address the following issues/scenarios:

Subsection (7): the entitlement if the period during which the adult requires care or support is less than 17 weeks.
Subsection (8) and (9): the latest date the employee can remain on leave.
Subsection (10): the latest date the employee can remain on leave if an adult dies.
Subsection (15): eligibility for "additional leaves".
Subsection (19): deviation from the plan originally provided to the employer setting out when leave would be taken.

Period of less than 17 weeks – section 49.4(7)

While subsection (6) provides that an employee is entitled to take up to 17 weeks of critical illness leave to provide care or support to a critically ill adult, subsection (7) provides an exception where the medical certificate indicates that the number of weeks during which the adult will require care or support is a number less than 17 weeks. In that case, the employee can only take a leave for the number of weeks indicated (note, however, that if the adult is still critically ill and in need of care or support after the period specified in the certificate has expired, the employee may be eligible for a further leave pursuant to subsection (15)).

When leave must end — s. 49.4(8); Limitation period – section 49.4(9)

These subsections establish the latest date an employee can remain on critical illness leave; in other words, they set out the date the window for taking a critical illness leave closes. These subsections must be read in conjunction with the provisions that set out the maximum length of the leave, which is 37 weeks in relation to a minor child, and 17 weeks in relation to an adult. These subsections must also be read in conjunction with subsections (9) and (10), which establish the latest date an employee can remain on leave if the minor child or adult dies while the employee is on leave. In addition, regard should be had to subsections (14), (15) and (16); those subsections provide for further leaves if a critically ill minor child or adult remains critically ill.

General rule: Window for taking leave closes on last day of period of care/support set out in certificate – section 49.4(8)

The general rule is that an employee's right to be on leave ends on the last day of the period the minor child or adult requires care or support as specified in the certificate issued by the qualified health practitioner.

Exception to general rule: If period of care/support is 52 weeks or more: Window for taking leave ends at end of 52^nd week – section 49.4(9)

If the certificate states that the minor child or adult requires care or support for a period of 52 weeks or longer, the employee's right to be on leave ends on the last day of the 52-week period that starts the earlier of:

The first day of the week the certificate was issued; and
The first day of the week the minor child or adult became critically ill.

Example:

A minor child became critically ill on Friday, February 8.
A qualified health practitioner issued a certificate on Tuesday, February 12.
The certificate stated that the child will require care or support indefinitely.

Pursuant to subsection (9), the employee's right to be on leave will end on the last day of the 52-week period that starts the first day of the week the child became critically ill.

The definition of a week is a period of seven consecutive days beginning on Sunday and ending on Saturday (see section 49.4(1)).

Accordingly:

The first day of the week the minor child became critically ill is Sunday, February 3.
The employee's right to be on leave ends on the last day of the 52-week period that starts Sunday, February 3.
That day is the 52nd Saturday that follows Sunday, February 3, which will be Saturday, February 1 (in a non-leap year).

Note, however, that while the right to be on the leave ends on Saturday, February 1, the employee may qualify for an additional leave after the original leave ends, in accordance with subsection (16).

Death of minor child or adult – section 49.4(10)

This subsection establishes the latest date an employee can be on critical illness leave if the critically ill minor child or adult for whom the leave was taken dies. In effect, it establishes an exception to the rules regarding the last day an employee can be on leave that are established by subsections (8) and (9).

Subsection (10) provides that if an employee is on critical illness leave and the minor child or adult dies, the employee's right to be on leave ends at the end of the week (which, in accordance with the definition of a week in section 49.4(1), will be a Saturday) in which the person dies.

Note that if an employee’s minor child dies, the employee will generally be entitled to take child death leave per section 49.5. In other cases, the employee may be entitled to take personal emergency leave if the individual who dies is an individual listed in section 50(2).

Total amount of leave – Critically ill minor child – section 49.4(11); Total amount of leave – Critically ill adult – section 49.4(12)

Sharing the leave

Under subsection (11) and (12), the maximum amount of leave available to an employee or employees in respect of the same minor child or adult who is critically ill is 37 weeks in relation to a minor child, and 17 weeks in relation to an adult.

Where more than one employee takes critical illness leave with respect to the same person the 37 or 17 week maximum (whichever applies) has to be shared by the employees. The employees who are sharing the leave can be on leave at the same time, or at different times; the Act does not impose any restrictions in this regard (the sharing requirement applies whether or not the employees work for the same employer).

The sharing requirement applies only where the two or more employees take leave under this section, i.e., section 49.4 of the Employment Standards Act, 2000. An employee who takes a leave similar to critical illness leave pursuant to a contractual provision that provides a greater right than section 49.4 (which thus prevails over section 49.4 pursuant to section 5(2) of the Employment Standards Act, 2000) is not taking leave under this section; therefore the amount of leave that employee takes does not reduce the amount of leave that other employees can take in respect of the same minor child or adult under section 49.4.

Likewise, an employee who takes a leave similar to Employment Standards Act, 2000 critical illness leave pursuant to the employment standards legislation of another jurisdiction is not taking leave under this section. So, for example, if one family member of a critically ill minor child works in Ontario and the other family member works in, say, Manitoba, and they each take critical illness leave to care for the minor child pursuant to their respective provincial employment standards statutes, the Ontario employee has the full 37-week leave entitlement; they will not have to share the 37 weeks with the other family member.

Subsection (11) and (12) do not displace limits set out in subsections (4) or (7)

Note that in accordance with principles of statutory interpretation, section 49.4 (11) and (12), like other subsections in section 49.4, must be read within the context of section> 49.4 as a whole; it does not, therefore, displace the limits set out in "section 49.4(4) and (7). Section 49.4(4) states that if the certificate issued by the qualified health practitioner specifies the number of weeks the critically ill minor child will require care or support as a number less than 37, then it is that number of weeks of leave (and not 37 weeks) that the employee will be entitled to. Section 49.4(7) performs the same function for a certificate issued in relation to a critically ill adult that provides a lesser number of weeks than 17. Simply put, section 49.4(11) and (12) do not give an employee or employees a longer period of leave than the period specified in the certificate where that period is less than 37 weeks for a minor child or 17 weeks for an adult.

Additional leaves

Lastly, subsections (11) and (12) also apply with respect to any additional leaves taken under subsections (14) or (15). Subsection (14) allows for additional leaves of up to 37 weeks after each 52-week period described in subsection (9) for a minor child, if the eligibility criteria are met for a second, third, etc. time. Subsection (15) allows for additional leaves of up to 17 weeks after each 52-week period described in subsection (9) for an adult, if the eligibility criteria are met for a second, third, etc. time.

Subsection (13) below addresses the situation where a minor child turns 18 within 52 weeks of the certificate issuance and for whom the full 37 weeks of leave have not been taken.

Limitation where child turns 18 – section 49.4(13)

This subsection addresses the scenario where an employee begins a leave in relation to a minor child who turns 18 before the full entitlement to the leave is taken. In this case, the employee will be entitled to take the full duration of the original 37-week leave, but will not be entitled to a leave under subsection (5) until the original limitation period established by subsection (9) has expired.

For example, if a certificate is issued under subsection (2) on Thursday, January 5^th, the 52-week period described in subsection (9) will start on Sunday, January 1. If the minor child turns 18 on March 1, the employee remains entitled to take up to 37 weeks of leave within the 52-week period between January 1 and December 31. However, if the employee uses all 37 weeks by September 30, and the now-adult family member remains critically ill, the employee will have to wait until January 1 for a new certificate to be issued under subsection (5) and become entitled to a new leave of 17 weeks in relation to a critically ill adult.

Further leave – Critically ill minor child – section 49.4(14)

In general terms, subsection (14) is meant to result in an appropriate solution where the health practitioner's certificate that was originally issued did not accurately predict (i.e. underestimated) the period during which the minor child would require care or support.

Subsection (14) addresses the situation where a minor child remains critically ill and requires care or support beyond the period specified in the certificate, but only up to the end of the 52-week period (subsection (16) addresses the situation where a minor child remains critically ill beyond the 52 weeks. In general terms, subsection (16) permits employees to take additional leaves of up to 37 weeks in subsequent 52-week periods).

This subsection – subsection (14) – addresses the situation in which:

An employee wishes to extend their leave for a period longer than that which they originally intended to take because the minor child remains critically ill; or
An employee who has returned to work at the end of their leave wishes to take a new leave because the minor child remains critically ill.

In this situation, section 49.4(14) allows the employee to do so, subject to certain limitations:

First, a qualified health practitioner must issue a subsequent certificate after the first certificate was issued setting out a care or support period that differs from the period set out in the first certificate. It will typically be just the end date of the care or support period that will be different in the subsequent certificate; there is no requirement that both the start date and the end date be different in order to meet this requirement (the rationale here, presumably, is that the period for which the employee originally planned to take leave was based on a certificate that had underestimated the length of the period for which the minor child would require care or support).
Second, the total amount of leave taken must not exceed 37 weeks.
Third, the leave must end no later than the last day of the 52-week period that begins on the earlier of (a) the first day of the week in which the first certificate was issued and (b) the first day of the week in which the minor child became critically ill. ^{footnote 3[3]}

Child turns 18 before subsequent certificate issued

An employee does not become ineligible for a further leave pursuant to subsection (14) solely because the minor child turned 18 before a subsequent certificate is issued.

Example:

A health practitioner's certificate is issued stating that a child requires care or support from January 1 to February 1.
The child turns 18 on January 15.
He continues to require care or support on February 1, and a subsequent certificate is issued on February 1 stating that he requires care or support until June 1.

The employee in this situation will be entitled to a further leave, despite the fact that the individual in respect of whom the leave is being taken is 18 years old (and no longer falls within the definition of a minor child in section 49.4) at the point the employee is qualifying for a further leave. Note that subsection (13) will not prevent an employee from becoming eligible to take further leave under subsection (14). As stated above, subsection (14) is meant to result in an appropriate solution where the health practitioner's certificate underestimated the period during which the child or children require care or support. Had the first certificate accurately predicted the period of care or support, the employee would have been eligible for leave until June 1. Note, however, that an employee will be ineligible for an additional leave pursuant to subsection (16) if the child is 18 years old at the time the employee is attempting to qualify for an additional leave. This is because subsection (16), unlike subsection (14), provides that “the requirements of this section apply” to the additional leave, and this includes the requirement that the individual in respect of whom the employee wants to take the leave meet the definition of minor child by being under 18 years of age. In that case, the employee could qualify for a new, shorter 17 week leave on the basis of a certificate issued pursuant to subsection (5), but the employee would need to wait until the original 52-week period started by the issuance of the most recent certificate had elapsed per subsection (13).

There is no limit to the number of extensions or new leaves an employee is entitled to under section 49.4(14), but the subsection does limit the total number of weeks of leave that can be taken in the 52-week period to no more than 37 weeks and requires that the end of the leave or leaves be no later than the last day of the 52-week period that begins on the earlier of (a) the first day of the week in which the first certificate was issued and (b) the first day of the week in which the minor child became critically ill. Note, however, that this does not prevent an employee from taking additional leaves under subsection 49.4(16) after the 52-week period expires.

Example: Minor child – Two certificates whose periods total 37 weeks or less

A minor child became critically ill on January 1.
A qualified health practitioner issued a certificate on January 1.
The certificate stated that the child will require care or support for four weeks (until January 28).
The child was still critically ill on January 28.
A qualified health practitioner issued another certificate on January 29, stating that the child will require care or support for another four weeks (until February 25).
The child was not critically ill beyond February 25.

In this scenario, the employee would be entitled to take critical illness leave pursuant to subsection (2) during the four week period of January 1 to January 28, and a "further" four-week leave pursuant to subsection (14) during the period January 29 to February 25.

This provides the employee the same entitlement they would have had if the first certificate accurately predicted the period the child would require care or support.

Example: Minor child – Two certificates whose periods total between 37 and 52 weeks

A minor child became critically ill on January 1.
A qualified health practitioner issued a certificate on January 1.
The certificate stated that the child will require care or support for 30 weeks (until July 29).
The child was still critically ill on July 29.
A qualified health practitioner issued another certificate on July 30, stating that the child will require care or support for another ten weeks (until October 6).
The child was not critically ill beyond October 6.

In this scenario, the employee would be entitled to take critical illness leave pursuant to subsection (2) during the 30-week period January 1 to July 29, and a further leave pursuant to subsection (14) during the 10-week period July 30 to October 6. However, pursuant to paragraph (b) of subsection (14), the employee is only entitled to be on leave for a maximum of 37 weeks during that 40-week period.

Further leave – Critically ill adult – section 49(15)

In general terms, subsection (15) is meant to result in an appropriate solution where the health practitioner's certificate that was originally issued did not accurately predict (i.e. underestimated) the period during which the adult would require care or support.

Subsection (15) addresses the situation where an adult remains critically ill and requires care or support beyond the period specified in the certificate, but only up to the end of the 52-week period. (Subsection (16) addresses the situation where an adult remains critically ill beyond the 52 weeks. In general terms, subsection (16) permits employees to take additional leaves of up to 17 weeks in subsequent 52-week periods).

This subsection – subsection (15) – addresses the situation in which:

An employee wishes to extend their leave for a period longer than that which they originally intended to take because the adult remains critically ill; or
An employee who has returned to work at the end of their leave wishes to take a new leave because the adult remains critically ill.

In this situation, section 49.4(15) allows the employee to do so, subject to certain limitations:

First, a qualified health practitioner must issue a subsequent certificate after the first certificate was issued setting out a care or support period that differs from the period set out in the first certificate. It will typically be just the end date of the care or support period that will be different in the subsequent certificate; there is no requirement that both the start date and the end date be different in order to meet this requirement (he rationale here, presumably, is that the period for which the employee originally planned to take leave was based on a certificate that had underestimated the length of the period for which the adult would require care or support).
Second, the total amount of leave taken must not exceed 17 weeks.
Third, the leave must end no later than the last day of the 52-week period that begins on the earlier of (a) the first day of the week in which the first certificate was issued and (b) the first day of the week in which the adult became critically ill.

There is no limit to the number of extensions or new leaves an employee is entitled to under section 49.4(15), but the subsection does limit the total number of weeks of leave that can be taken in the 52-week period to no more than 17 weeks and requires that the end of the leave or leaves be no later than the last day of the 52-week period that begins on the earlier of (a) the first day of the week in which the first certificate was issued and (b) the first day of the week in which the adult became critically ill. Note, however, that this does not prevent an employee from taking additional leaves under subsection 49.4(16) after the 52-week period expires.

Example: Adult – Two certificates whose periods total 17 weeks or less

An adult became critically ill on January 1.
A qualified health practitioner issued a certificate on January 1.
The certificate stated that the adult will require care or support for four weeks (until January 28).
The adult was still critically ill on January 28.
A qualified health practitioner issued another certificate on January 29, stating that the adult will require care or support for another four weeks (until February 25).
The adult was not critically ill beyond February 25.

In this scenario, the employee would be entitled to take critical illness leave pursuant to subsection (5) during the four week period of January 1 to January 28, and a further four-week leave pursuant to subsection (15) during the period January 29 to February 25.

This provides the employee the same entitlement they would have had if the first certificate accurately predicted the period the child would require care or support.

Example: Adult – Two certificates whose periods total between 17 and 52 weeks

An adult became critically ill on January 1.
A qualified health practitioner issued a certificate on January 1.
The certificate stated that the adult will require care or support for 10 weeks (until March 11).
The adult was still critically ill on March 11.
A qualified health practitioner issued another certificate on March 12, stating that the adult will require care or support for another ten weeks (until May 20).
The adult was not critically ill beyond May 20.

In this scenario, the employee would be entitled to take critical illness leave pursuant to subsection (5) during the 10-week period January 1 to March 11, and a further leave pursuant to subsection (15) during the 10-week period March 12 to May 20. However, pursuant to paragraph (b) of subsection (15), the employee is only entitled to be on leave for a maximum of 17 weeks during that 20-week period.

Additional leaves – section 49.4(16)

In general terms, this subsection addresses the situation where a minor child or adult is still critically ill 52 weeks or more after first developing a critical illness. It provides that employees are able to re-qualify for additional critical illness leave(s) of up to 37 weeks for a minor child or up to 17 weeks for an adult in subsequent 52-week periods.

Subsection (16) provides that if an employee took critically ill child care leave for a minor child or an adult, and the person remains critically ill after the end of the 52-week period described in subsection (9) (that is, the 52-week period that begins on the earlier of (a) the first day of the week in which the first certificate was issued and (b) the first day of the week in which the minor child or adult became critically ill), the employee is entitled to take another critical illness leave if they again meet the requirements of section 49.4 (see subsection (9) above for details regarding the 52-week period).

Note that if a minor child or adult that was critically ill develops a new critical illness, the employee will be entitled to another critically ill child care, critical illness leave. However, the entitlement will arise simply by virtue of meeting the qualifying condition in section 49.4(2) or (5); the entitlement does not arise from subsection (13) (since it only applies to employees whose child remains critically ill) and, accordingly, the restrictions in subsection (13) as to the earliest date an additional leave may be taken do not apply with respect to a leave taken because of a new, subsequent critical illness. This means that, for example, if an employee who took leave for the first 37 weeks in a 52-week period to care for a minor child and then that same minor whose child develops developed a new critical illness in week 40 will, the employee would, assuming the qualifying criteria of subsection (2) are met, be entitled to begin a new leave as of week 40. There is no upper limit to the number of additional leaves an employee is entitled to under this subsection. After each 52-week period described above elapses, if the minor child or adult the employee has taken leave in relation to remains critically ill, then the employee may qualify for a fresh critical illness leave by again meeting the requirements of section 49.4.

One of the requirements of section 49.4(2) is that the individual in respect of whom the employee wants to take the leave is under 18 years of age. Accordingly, an employee is not eligible for an additional leave under that subsection if the individual in respect of whom the employee wants to take the leave is, at the time the eligibility for an additional leave is being assessed, already 18 years of age – in that case, the employee may qualify for a new leave under subsection (5) but will be subject to the requirements of subsection (13) However, an employee will be eligible for a further leave pursuant to subsection (14) even if the individual is 18 years at the time the employee is trying to qualify for a further leave. This is because, unlike subsection (16), subsection (14) does not provide that “the requirements of this section apply” to the further leave (see subsection (14) above).

Each additional leave an employee is entitled to is governed by the restrictions of section 49.4 as they pertain to that additional leave. For example, the provisions regarding when the leave must end, what happens if a minor child or adult dies, the total amount of each leave in subsections (11) and (12), eligibility for a further leave under subsections (14) and (15) and eligibility for more additional leaves under subsection (16).

Note that subsections (11) and (12) apply each time an employee takes a leave under this section and any additional leaves must be shared if they are taken by more than one employee in relation to the same critically ill person. In other words, an employee is entitled to no more than 37 weeks of leave (for a minor child) or 17 weeks of leave (for an adult) with respect to the original leave and to no more than 37 or 17 weeks of leave with respect to each additional leave in subsequent 52 week periods. There is no cap on the number of leaves (each of which may be up to 37 or 17 weeks in a 52-week period) an employee may be entitled to.

Advising employer – section 49.4(17); Same – section 49.4(18)

S. 49.4(17) requires employees to advise their employers in writing before starting the leave that they will be taking critical illness leave. This subsection also requires employees to, before starting the leave, provide a written plan setting out the weeks in which the leave will be taken. Where employees will be taking some of the leave in single days, the requirement is that the written plan must indicate the weeks in which the leave will be taken; it need not indicate which days in those weeks.

In circumstances where the employee cannot advise the employer before the leave commences, the employee is required, pursuant to section 49.4(18), to advise the employer (in writing) and provide the written plan as soon as possible after beginning the leave.

If an employee wants to take a leave at a time other than that indicated in the plan, the employee has to meet the requirements of subsection (19).

An employee does not lose their right to critical illness leave if they fail to comply with subsection 49.4(17) or (18). An employee's entitlement to critical illness leave arises by virtue of meeting the eligibility criteria in section 49.4(2) or (5), and it is the Program's position that the failure to advise the employer before or as soon as possible after the leave begins or the failure to provide a written plan does not negate that entitlement. This approach is consistent with the Program's long-standing policy for all leaves contained in Part XIV where the structures of the entitlement and notice provisions are similar to these. See for example Employment Standards Act, Part XIV, subsection 46(4) (pregnancy leave) and 48(4) (parental leave).

The question may arise as to whether an employer can penalize an employee for failing to give advance notice that they will be absent from work (as may be required under an employer policy), where the time off is a critical illness leave under the Act. Section 49.4(18) provides that "if an employee must begin a leave before advising the employer, the employee shall advise the employer of the leave in writing as soon as possible after beginning it." It is thus clear that the Act contemplates situations where the employee would be unable to advise the employer in advance of starting the leave and that the employee nevertheless has a right to take leave in such situations (although the employee does have an obligation to advise the employer of the leave as soon as possible after beginning it). On the other hand, the failure to give notice in advance of taking leave, when the employee could have done so, can be the subject of disciplinary action by the employer without violating section 74. However, the following points should be borne in mind:

The employee's failure to give advance notice or a written plan does not nullify the right to take the leave if the qualifying conditions in subsections 49.4(2) or (5) have been met (in other words, the failure to give advance notice does not have the result that the time taken off by the employee is not critical illness leave).
An employer may impose discipline where the employee failed to provide written notice or a written plan before starting the leave in situations where the employee could have done so; however, the reason for the discipline must be because of the failure to give written notice or a written plan before starting the leave and not because the employee exercised the right to take leave.
Likewise, an employer may impose discipline if an employee fails to provide any notice of the leave or any written plan (before or after the start of the leave). Again, however, the reason for the discipline must be because of the failure to provide any notice or to provide any plan and not because the employee exercised the right to take leave.

Same – Change in employee's plan – section 49.4(19)

This subsection provides that once an employee provides the employer with a written plan that indicates the weeks in which they will take the leave, as required by subsection (17) or (18), the employee is permitted to deviate from that plan only if:

The employee asks for permission for the change in writing and the employer grants permission in writing; or
The employee gives such written notice of the change as is reasonable in the circumstances. When determining what is reasonable in the circumstances, the circumstances of the both the employee and the employer are taken into account.

Examples of the employee's circumstances that may impact on how much advance notice of the change is reasonable include:

The unpredictability of the progress of a minor child or adult's illness or injury that may have made it extremely difficult to establish with any certainty the dates of the leave; and
The suddenness of any change in the minor child or adult's condition, whether for the better or for the worse.

An example of the employer's circumstances that may impact on how much advance notice of the change is reasonable is the cost and disruption of having to accommodate the change in plans, for example, if the employer hired a long-term replacement for an employee who originally advised he would be on leave for 37 consecutive weeks but now wishes to return to work after 15 weeks and alternate weeks of leave with weeks at work, the amount of advance notice of the change required would be greater than if the employer had not hired a replacement.

It is the Program's position that the employer can refuse to allow the employee to deviate from the dates provided in the original written plan if neither condition set out in clause (a) or (b) are met.

The requirements of these subsections apply whenever the employee is deviating from the plan. This includes, for example, situations where the employee gave the employer a written plan that advised that she will be on leave for the next two weeks, but which was silent about any other dates or advised that more leave would be taken in the future but that the dates are yet unknown and will be provided in the future. Taking leave beyond those initial two weeks is a change in the employee's plan; accordingly, the requirements of paragraph (a) or (b) will apply.

An employee can make multiple changes to their written plan, so long as they meet the requirements of paragraph (a) or (b) each time.

Subsection (19) does not apply if the change to the dates of the leave is required by the Employment Standards Act, 2000 itself. For example, if the employee advised the employer that he would be on leave for 37 consecutive weeks but the minor child dies in the 15^th week, the Act (section 49.4(10)) provides that the leave ends at the end of the week in which the minor child dies. The employee is entitled to return to work at the end of that week – the employee does not have to meet the requirements of subsection (19) in order to return to work at the end of that week.

Copy of certificate – section 49.4(20)

This section provides that if the employer asks the employee for a copy of the section 49.4(2), (5), (14) or (15) certificate (i.e., a certificate issued by a qualified health practitioner that states that a minor child or an adult is a critically ill minor child or adult who requires care or support and that sets out the period during which the person requires the care or support), the employee is required to provide it as soon as possible.

This subsection applies to all of the certificates referred to in section 49.4. For example, if an employee takes a further leave under subsections (14) or (15) or an additional leave under subsection (16) and accordingly obtained a second, third, fourth, etc. certificate, the employee is required to provide the employer with a copy of any subsequent certificate that is requested by the employer.

An employee's failure to provide a copy of the certificate does not disentitle them to critical illness leave. It is the Program's view that the requirement to provide a copy of the certificate is not a condition precedent to the entitlement to critical illness leave; the conditions for entitlement are set out in section 49.4(2) and (5). However, as provided in section 49.4(2) and (5), in order to be entitled to the leave, the employee must obtain a certificate. In other words, while the failure to provide a copy of the certificate to the employer does not disentitle the employee, a failure to have obtained the required certificate will do so.

That is not to say the leave cannot begin before the certificate is obtained. If the employee has not obtained a certificate before commencing the leave, they may do so at a later date and thereby retroactively qualify for the leave. If, for example, an employer penalizes an employee on the basis that they did not have a certificate prior to commencing the leave, such conduct would constitute a reprisal if the employee subsequently obtained the certificate.

Section 49.4(21) – Repealed

Transition – section 49.4(22)

The current critical illness leave provisions came into force on December 3, 2017. Prior to this date, section 49.4 was titled “critically ill child care leave” and only employees whose own children were critically ill were eligible for a leave of up to 37 weeks if a qualified health practitioner issued the appropriate certificate.

If an employee has a certificate issued by a qualified health practitioner to support critically ill child care leave, and the certificate was issued before December 3, 2017, then the employee’s leave will be governed by the provisions of section 49.4 as they existed before that day. Note that the employee will be bound by the provisions of the previous leave even if the certificate had been issued, but the employee had not yet commenced the leave on December 3, 2017.

Section 49.5 – Child death leave

Child death leave came into force on January 1, 2018 as a result of the Fair Workplaces, Better Jobs Act, 2017, SO 2017, c 22 which amended the Employment Standards Act, 2000. The ESA 2000 previously provided a crime-related child death or disappearance leave, which entitled employees who were parents of a child who had disappeared or who died as a probable result of a crime to a leave of absence. If the child of the employee had died as the probable result of crime, the employee was entitled to 104 weeks of leave. If the child of the employee had disappeared as the probable result of a crime, the employee was entitled to 52 weeks of leave. If the child who had disappeared as the probable result of crime was subsequently found dead, the employee was then entitled to 104 weeks of leave running from the time the employee began the original leave.

Child death leave provides the same entitlements for a child’s death as the previous crime-related child death or disappearance leave, although there is no longer a requirement that the child died as a result of (or as a probable result of) a crime. In other words, child death leave can be taken in respect of the death of an employee’s child, no matter the circumstances of the death. Please see s. 49.5(12) below for transitional information relating to a crime-related child death leave that commenced before January 1, 2018.

Definitions – section 49.5(1)

This section contains definitions of three terms that are used in the child death leave provisions.

Child

For the purpose of the child death leave provisions, a child is the employee's child (which includes an adopted child, even if the adoption proceedings have not been finalized), step-child, foster child or child for whom the employee has been appointed as a legal guardian and who is under 18 years of age.

Crime

An employee is not entitled to a leave if the child's death was the result of a crime and the employee has been charged with a crime in relation to the death. Additionally, the employee will not be entitled to a leave if it is probable, considering the circumstances, that the child was a party to a crime in relation to their own death.

"Crime" is defined to mean an offence under the federal Criminal Code, other than offences that are prescribed by regulations that are made under s. 209.4(f) of the Canada Labour Code, RSC 1985, c L-2.

The Canada Labour Code provides for a crime-related child death or disappearance leave if it is probable, considering the circumstances, that the child's death or disappearance was as a result of a crime. Note that the federal leave is similar to the previous crime-related child death or disappearance leave under the ESA 2000. The Canada Labour Code defines crime as an offence under the Criminal Code, and provides that regulations may be made under the Canada Labour Code to exclude some Criminal Code offences from the definition of crime. Any offences that are excluded from the Canada Labour Code's definition of crime through a regulation made under s. 209.4(f) of the Canada Labour Code are similarly excluded from the ESA 2000's definition of crime for the purposes of section 49.5.

Week

"Week" means a period of seven consecutive days beginning on Sunday and ending on Saturday. For the purposes of child death leave, week will always be Sunday to Saturday, even if the employer's work week is different.

Entitlement to leave – section 49.5(2)

Subsection 49.5(2) provides an entitlement for an employee who has been employed by his or her employer for at least six consecutive months to a leave of absence without pay if the employee's child dies. The employee may take a leave of up to 104 weeks.

The question has arisen as to whether an employee who has experienced a still-birth would be entitled to take child death leave. Given that still-births are legally distinct and treated differently than live births and deaths under the Vital Statistics Act (i.e. in the province of Ontario, per Regulation 1094 of the Vital Statistics Act, a death certificate is not issued in the case of a still-birth), it’s Program policy that the answer is no. As such, it is Program policy that an employee would not be eligible to take child death leave in this circumstance. Note, though, that the employee who had the still-birth would — if the stillbirth occurred no more than 17 weeks before the due date — be entitled to take pregnancy leave (which would end either 17 weeks after the leave began, or 12 weeks after the still-birth, whichever day is later — see s. 47(1)(b)). The employee may also be eligible for Sick Leave. Other employees may also be eligible for other leave entitlements — e.g. an employee who is a family member of the employee who had the still-birth may be eligible for Family Responsibility Leave to provide care for the employee who had the still-birth if the eligibility criteria for that leave are met.

Exception – section 49.5(3)

Subsection 49.5(3) provides that there is no entitlement to a leave under s. 49.5 if:

The employee is charged with a crime in relation to the child's death; or
It is probable, considering the circumstances, that the child was a party to a crime in relation to their death.

Single period – section 49.5(4)

Subsection 49.5(4) provides that an employee can take a leave under s. 49.5 only in one single period. A return to work prior to the expiry of the maximum length of the leave would end the entitlement to the leave.

Limitation period – section 49.5(5)

Subsection 49.5(5) provides that the entitlement of up to 104 weeks of leave available under s. 49.5(2) because of the death of a child can be taken only during the 105-week period that begins in the week the child died.

Total amount of leave – section 49.5(6)

Under section 49.5(6), the maximum amount of leave available to an employee or employees in respect of the same child, or children who died as the result of the same event, is 104 weeks.

Sharing the leave

Where more than one employee takes leave under s. 49.5(2) because of the death of the same child - or the same children who died as the result of the same event - the 104 week maximum has to be shared by the employees. The employees who are sharing the leave can be on leave at the same time, or at different times; the ESA 2000 does not impose any restrictions in this regard. The sharing requirement applies whether or not the employees work for the same employer.

The sharing requirement applies only where the two or more employees take leave under this section, i.e., s. 49.5 of the ESA 2000. An employee who takes a leave similar to child death leave pursuant to a contractual provision that provides a greater right than s. 49.5, which thus prevails over s. 49.5 under ESA Part III, s. 5(2), is not taking leave under this section; therefore, the amount of leave that employee takes does not reduce the amount of leave that other employees can take in respect of the same child under s. 49.5. Likewise, an employee who takes a leave similar to ESA child death leave under the employment standards legislation of another jurisdiction is not taking leave under s. 49.5. Thus, if one parent of a child who has died works in Ontario and the other parent works in, say, Manitoba, and they each take child death leave pursuant to their respective employment standards statutes, the Ontario employee has the full 104-week entitlement; they will not have to share the entitlement with the other parent.

Advising employer – section 49.5(7); Same – section 49.5(8)

Subsection 49.5(7) requires employees to advise their employers in writing that they will be taking child death leave, and to provide a written plan setting out the weeks in which the leave will be taken.

This subsection must be read in conjunction with s. 49.5(4), which establishes that a leave under s. 49.5 can be taken only in a single period. In other words, they must provide the start and end dates for the leave.

In circumstances where the employee cannot advise the employer before the leave commences, the employee is required, pursuant to s. 49.5(8), to advise the employer in writing as soon as possible after beginning the leave and to provide the written plan setting out the weeks in which the leave will be taken.

If an employee wants to take a leave at a time other than that indicated in the plan, the employee has to meet the requirements of s. 49.5(9).

An employee does not lose their right to child death leave if they fail to comply with ss. 49.5(7) or (8). An employee's entitlement to child death leave arises by virtue of meeting the eligibility criteria in s. 49.5(2), and it is the Program's position that the failure to advise the employer before or as soon as possible after the leave begins, or the failure to provide a written plan, does not negate that entitlement. This approach is consistent with the Program's long-standing policy for all leaves contained in Part XIV where the structures of the entitlement and notice provisions are similar to these. See for example Employment Standards Act, Part XIV, section 46(4) and section 48(4).

The question may arise as to whether an employer can penalize an employee for failing to give advance notice that they will be absent from work (as may be required under an employer policy) where the time off is a child death leave under the ESA 2000. Section 49.5(8) provides that "if an employee must begin a leave . . . before advising the employer, the employee shall advise the employer of the leave in writing as soon as possible after beginning it." It is clear that the ESA 2000 contemplates situations where the employee would be unable to advise the employer in advance of starting the leave and that the employee nevertheless has a right to take leave in such situations, although the employee does have an obligation to advise the employer of the leave as soon as possible after beginning it. On the other hand, the failure to give notice in advance of taking leave, when the employee could have done so, can be the subject of disciplinary action by the employer without violating Employment Standards Act, Part XVIII, section 74. However, the following points should be borne in mind:

The employee's failure to give advance notice or a written plan does not nullify the right to take the leave if the qualifying conditions in ss. 49.5(2) have been met. In other words, the failure to give advance notice does not have the result that the time taken off by the employee is not child death leave.
An employer may impose discipline where the employee failed to provide written notice or a written plan before starting the leave in situations where the employee could have done so; however, the reason for the discipline must be because of the failure to give written notice or a written plan before starting the leave and not because the employee exercised the right to take leave.
Likewise, an employer may impose discipline if an employee fails to provide any notice of the leave or any written plan (before or after the start of the leave); however, the reason for the discipline must be because of the failure to provide any notice or to provide any plan and not because the employee exercised their right to take leave.

Same — Change in employee's plan – section 49.5(9)

Subsection 49.5(9) provides that once an employee provides the employer with a written plan that indicates the weeks in which they will take the leave, as required by ss. 49.5(7) or (8), the employee is permitted to deviate from that plan only if:

The employee asks for permission for the change in writing and the employer grants permission in writing; or
The employee gives written notice of the change four weeks before the change is to take place.

An employee can make multiple changes to their written plan, so long as they meet the requirements of paragraph (a) or (b) each time.

This subsection must be read in conjunction with s. 49.5(4), which requires that leave under s. 49.5 can be taken only in a single period.

Evidence – section 49.5(10)

This provision gives an employer some ability to require an employee to provide proof that they are or were entitled to take child death leave. The employer can require an employee to provide evidence that is reasonable in the circumstances that they are or were entitled to take the leave, for example, a death certificate.

Section 49.5(11) – Repealed

Transition – section 49.5(12)

If an employee was on a crime-related child death or disappearance leave on December 31, 2017, the employee does not lose the right to continue that leave; an employee in that situation would continue on the leave in accordance with the provisions as they read on that date.

Section 49.6 – Crime-related child disappearance leave

Definitions – section 49.6(1)

This section contains definitions of three terms that are used in the crime-related child disappearance leave provisions.

Child

For the purpose of the crime-related child disappearance leave provisions, a child is the employee's child (which includes an adopted child, even if the adoption proceedings have not been finalized), step-child, foster child, or child for whom the employee has been appointed as a legal guardian, and who is under 18 years of age.

Crime

Employees are entitled to a leave only if, among other things, it is probable, considering the circumstances, that the child's disappearance was the "result of a crime".

Crime is defined to mean an offence under the federal Criminal Code, other than offences that are prescribed by regulations that are made under s. 209.4(f) of the Canada Labour Code, RSC 1985, c L-2.

Like the Employment Standards Act, 2000, the Canada Labour Code provides for a crime-related child disappearance leave if it is probable, considering the circumstances, that the child's disappearance was as a result of a crime. The Canada Labour Code defines crime as an offence under the Criminal Code, and provides that regulations may be made under the Canada Labour Code to exclude some Criminal Code offences from the definition of crime. Any offences that are excluded from the Canada Labour Code's definition of crime through a regulation made under s. 209.4(f) of the Canada Labour Code are similarly excluded from the ESA 2000's definition of crime for the purposes of s. 49.6.

Week

Week means a period of seven consecutive days beginning on Sunday and ending on Saturday. For the purposes of crime-related disappearance leave, week will always be Sunday to Saturday, even if the employer's work week is different.

Entitlement to leave – Disappearance of child – section 49.6(2)

This subsection provides an entitlement for an employee who has been employed by their employer for at least six consecutive months to a leave of absence without pay if the employee's child disappears and it is probable, considering the circumstances, that the child disappeared as a result of a crime. The employee may take a leave of up to 104 weeks.

Crime is a defined term: see s. 49.6(1) above for details.

Transition – section 49.6(3)

The crime-related child disappearance leave provisions came into force on January 1, 2018 as a result of the Fair Workplaces, Better Jobs Act, 2017, which amended the ESA 2000 by dividing the previously existing crime-related child death or disappearance leave into two separate leaves: crime-related child disappearance leave and child death leave. Under the previous crime-related child death or disappearance leave, an employee whose child disappeared as the likely result of a crime was entitled to a leave of 52 weeks. Under the new crime-related child disappearance leave, a leave may be taken for up to 104 weeks.

If the disappearance of a child, which triggers the leave entitlement, occurred prior to January 1, 2018, the employee is entitled to a leave of up to 52 weeks. If the disappearance of a child, which triggers the leave entitlement, occurs on or after January 1, 2018 the employee is entitled to a leave of up to 104 weeks pursuant to s. 49.6(2). Any employee who was on crime-related child disappearance leave as of December 31, 2017 will be entitled to complete the remaining period of the leave (to a maximum of 52 weeks).

Exception – section 49.6(4), Change in circumstance – section 49.6(5)

Subsection 49.6(4) provides that there is no entitlement to a leave under this section if:

The employee is charged with the crime that is the cause of the child's disappearance; or
It is probable, considering the circumstances, that the child was a party to the crime that caused their disappearance.

Subsection 49.6(5) provides that if an employee started a leave under s. 49.6 but it subsequently no longer seems probable that the child's disappearance was a result of a crime, the entitlement to leave ends on the day on which it no longer seems probable.

Child found – section 49.6(6); Same – section 49.6(7)

These subsections establish the entitlements where a leave is taken because of the crime-related disappearance of the child and the child is subsequently found.

If the child is found alive in the 104-week period that begins the week the child disappeared, the employee is entitled to remain on leave for 14 days after the day the child is found.

If the child is found dead in the 104-week period that begins the week the child disappeared, the employee is no longer entitled to remain on leave past the end of the week in which the child is found. Note that week is defined in s. 49.6(1). However, s. 49.6(7) explicitly states that the employee’s entitlement to Child Death Leave per s. 49.5 is unaffected by the previous leave taken. So, the employee may be eligible to begin a leave under s. 49.5. Section 49.5 contains provisions requiring the employee to give notice to the employer of their intention to take the leave; however, if the employee cannot give written notice in advance of taking the leave, notice can be given as soon as possible after beginning it. Failure to do so will not disentitle the employee to the leave.

Single period – section 49.6(8)

Subsection 49.6(8) provides that an employee can take a leave under s. 49.6 only in one single period. A return to work prior to the expiry of the maximum length of the leave would end the entitlement to the leave.

Limitation period – section 49.6(9)

This subsection provides that, subject to s. 49.6(8), the entitlement of up to 104 weeks of leave available because of the crime-related disappearance of a child can be taken only during the 105-week period that begins in the week the child disappeared. Note that the term week is defined for the purposes of this provision in s. 49.6(1).

Total amount of leave – section 49.6(10)

Sharing the leave

Under – section 49.6(10), the maximum amount of leave available to an employee – or employees – in respect of the same child, or children who disappeared as the result of the same event, is 104 weeks.

Where more than one employee takes a leave because of the crime-related disappearance of the same child - or the same children who disappeared as the result of the same event — the 104 week maximum has to be shared by the employees. The employees who are sharing the leave can be on leave at the same time, or at different times; the Act does not impose any restrictions in this regard. The sharing requirement applies whether or not the employees work for the same employer.

The sharing requirement applies only where the two or more employees take leave "under this section" i.e., s. 49.6 of the ESA 2000. An employee who takes a leave similar to crime-related child disappearance leave pursuant to a contractual provision that provides a greater right than s. 49.6, which thus prevails over s. 49.6 under ESA Part III, s. 5(2), is not taking leave under this section; therefore, the amount of leave that employee takes does not reduce the amount of leave that other employees can take in respect of the same child under s. 49.6. Likewise, an employee who takes a leave similar to ESA 2000 crime-related child disappearance leave under the employment standards legislation of another jurisdiction is not taking leave under s. 49.6. Thus, if one parent of a child who has disappeared as a probable result of crime works in Ontario and the other parent works in, say, Manitoba, and they each take crime-related disappearance leave pursuant to their respective employment standards statutes, the Ontario employee has the full 104-week entitlement; they will not have to share the entitlement with the other parent.

Advising employer – section 49.6(11); Same – section 49.6(12)

Section 49.6(11) requires employees to advise their employers that they will be taking crime-related child disappearance leave, and to provide a written plan setting out the weeks in which the leave will be taken.

This subsection must be read in conjunction with s. 49.6(9), which establishes when the leave may be taken and s. 49.6(8), that provides the leave must be taken only in a single period.

In circumstances where the employee cannot advise the employer before the leave commences, the employee is required, pursuant to s. 49.6(12), to advise the employer in writing as soon as possible after beginning the leave and to provide the written plan setting out the weeks in which the leave will be taken.

If an employee wants to take a leave at a time other than that indicated in the plan, the employee has to meet the requirements of s. 49.6(13).

An employee does not lose their right to crime-related child disappearance leave if they fail to comply with ss. 49.6(11) or (12). An employee's entitlement to crime-related child disappearance leave arises by virtue of meeting the eligibility criteria in s. 49.6(2), and it is the Program's position that the failure to advise the employer before or as soon as possible after the leave begins, or the failure to provide a written plan, does not negate that entitlement. This approach is consistent with the Program's long-standing policy for all leaves contained in Part XIV where the structures of the entitlement and notice provisions are similar to these. See for example ESA Part XIV, s. 46(4) and s. 48(4).

The question may arise as to whether an employer can penalize an employee for failing to give advance notice that they will be absent from work (as may be required under an employer policy) where the time off is a crime-related child disappearance leave under the ESA 2000. Section 49.6(12) provides that "if an employee must begin a leave . . . before advising the employer, the employee shall advise the employer of the leave in writing as soon as possible after beginning it." It is clear that the Act contemplates situations where the employee would be unable to advise the employer in advance of starting the leave and that the employee nevertheless has a right to take leave in such situations (although the employee does have an obligation to advise the employer of the leave as soon as possible after beginning it). On the other hand, the failure to give notice in advance of taking leave, when the employee could have done so, can be the subject of disciplinary action by the employer without violating s. 74. However, the following points should be borne in mind:

The employee's failure to give advance notice or a written plan does not nullify the right to take the leave if the qualifying conditions in s. 49.6(2) have been met. In other words, the failure to give advance notice does not have the result that the time taken off by the employee is not crime-related child disappearance leave.
An employer may impose discipline where the employee failed to provide written notice or a written plan before starting the leave in situations where the employee could have done so; however, the reason for the discipline must be because of the failure to give written notice or a written plan before starting the leave and not because the employee exercised the right to take leave.
Likewise, an employer may impose discipline if an employee fails to provide any notice of the leave or any written plan (before or after the start of the leave); however, the reason for the discipline must be because of the failure to provide any notice or to provide any plan and not because the employee exercised their right to take leave.

Same – Change in employee's plan – section 49.6(13)

This subsection establishes that once an employee provides the employer with a written plan indicating the weeks in which they will take the leave, as required by ss. 49.6(11) or (12), the employee is permitted to deviate from that plan only if:

The employee asks for permission for the change in writing and the employer grants permission in writing; or
The employee gives written notice of the change four weeks before the change is to take place.

An employee can make multiple changes to their written plan, so long as they meet the requirements of paragraph (a) or (b) each time.

This subsection must be read in conjunction with s. 49.6(8), which requires that leave under s. 49.6 can be taken only in a single period.

Evidence – section 49.6(14)

This provision gives an employer some ability to require an employee to provide proof that they are or were entitled to take crime-related child disappearance leave. The employer can require an employee to provide evidence that is reasonable in the circumstances that they are or were entitled to take the leave.

Section 49.6(15) – Repealed

Section 49.7 – Domestic or sexual violence leave

The domestic or sexual violence leave provisions came into force on January 1, 2018 as a result of the Fair Workplaces, Better Jobs Act, 2017, which amended the Employment Standards Act, 2000. The intention of the section is to provide job-protected leave of up to 10 days and 15 weeks per calendar year to an employee for particular enumerated purposes if the employee or the employee’s child has experienced or been threatened with domestic or sexual violence.

Definitions – section 49.7(1)

This subsection contains two definitions of terms used in s. 49.7

For the purposes of the domestic violence or sexual violence leave provisions, a “child” means someone who is under 18 years of age and who is the employee’s child (which includes an adopted child, even if the adoption proceedings have not been finalized), step-child, foster child, or child who is under the employee’s legal guardianship.

Note this is the same definition of child used for the purposes of child death leave in ESA Part XIV, s. 49.5(1) and crime-related child disappearance leave in ESA Part XIV, s. 49.6(1).

In order to be considered a child for the purpose of entitlements to domestic or sexual violence leave, the child must be under 18 years of age when they experienced or were threatened with domestic or sexual violence, and when the employee takes the leave for any of the enumerated purposes if the leave is being taken in relation to the child.

“Week” means a period of seven consecutive days beginning on a Sunday and ending on a Saturday. For the purposes of s. 49.7, week will always be Sunday to Saturday even if the employer’s work week is different.

Entitlement to leave – section 49.7(2)

49.7(2) An employee who has been employed by an employer for at least 13 consecutive weeks is entitled to a leave of absence if the employee or a child of the employee experiences domestic or sexual violence, or the threat of domestic or sexual violence, and the leave of absence is taken for any of the following purposes:

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.
Such other purposes as may be prescribed.

This subsection provides for an entitlement to domestic or sexual violence leave if the eligibility requirements set out in the provision are met.

Employed by an employer for at least 13 consecutive weeks

To be eligible for a domestic or sexual violence leave, the employee must have been employed by the same employer for a minimum of 13 weeks before taking the leave. It is not necessary that the employee have been actively working, so long as they were an employee during this time. For example, the employee could have been off receiving short-term disability benefits, on vacation, or on lay-off, or on a statutory leave during this period.

Employee or their child experiences domestic or sexual violence, or the threat of domestic or sexual violence

In order to be eligible for this leave, either the employee or the employee’s child must have experienced or been threatened with sexual or domestic violence. It is Program policy that an employee will be eligible to take the leave even if the incident or threat of domestic or sexual violence occurred prior to January 1, 2018, the coming into force date of this provision, as long as the eligibility requirements (such as length of employment, etc.) are satisfied.

“Domestic or sexual violence” is not a defined term.

However, as a guideline, domestic violence may include physical, emotional or psychological abuse or an act of coercion, stalking, harassment or financial control. A threat of such abuse is also covered by this provision.It may be committed by an employee’s current or former spouse or intimate partner, or between an individual and a child who resides with the individual or between an individual and an adult or child who is related to the individual by blood, marriage, foster care or adoption.

Sexual violence can include acts such as sexual assault, harassment, stalking, indecent exposure, voyeurism, sexual exploitation and sexual solicitation. It can be committed by anyone, whether or not they have any relationship to the employee. A threat of sexual violence is also covered by this provision.

It is Program policy to take an employee’s statement that domestic or sexual violence has occurred or was threatened at face value. In other words, an employment standards officer need not “look behind” the statement to determine whether the violence actually occurred or was threatened. However, note that an employer is entitled to request evidence reasonable in the circumstances to support an employee’s right to take domestic or sexual violence leave for specific defined purposes.

Leave of absence is taken for any of the following purposes:

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;
Such other purposes as may be prescribed.

In order to be eligible for a domestic or sexual violence leave, the leave must be taken for one or more of the specific purposes listed in this subsection.

In other words, even though the employee or the employee’s child may have experienced or been threatened with domestic or sexual violence, the employee will not be entitled to take the leave unless it is taken for at least one of the purposes set out above.

Note that in some cases, a single period of leave may be taken for multiple purposes (i.e., counselling provided by a rape crisis centre could be considered to fall under both paragraphs 2 and 3 below). An employee may also take more than one period of leave for a single purpose, for example to attend weekly psychological counselling sessions. And lastly, an employee may take different periods of leave for different purposes, for example to seek medical attention at one point, and to seek legal assistance or participate in a Family Court or criminal trial at a later point in time.

Finally, it should also be noted that where an employee is entitled to take domestic violence or sexual violence leave, the employee (within the constraints imposed under this section) has the right to determine when or if to commence the leave. In other words, the employer does not have the right to schedule a leave for the employee. The employee’s right also effectively overrides an employer’s right to schedule vacation.

As per ESA Part XI, ss. 35 and 35.1, an employer is otherwise entitled to schedule the employee’s vacation time, subject to the limits created by those sections. The Program’s policy concerning an employee’s right to choose when to commence a leave (within the parameters of that specific leave) is consistent with ESA Part XIV, s. 51.1, which applies where there is a conflict between an employer’s obligation to schedule vacation within the time limits set out within the ESA 2000 or where vacation entitlements would be lost under a contract of employment, because of a Part XIV leave. In accordance with that section, any vacation that would otherwise be lost is deferred to the end of the leave.

Seek medical attention

An employee or their child may need medical attention as a result of physical or psychological injury sustained during an act or threat of domestic or sexual violence. In some cases, there may be an initial treatment and then a follow up visits or treatments at a later date. Medical attention would include, for example, any medical consultation, medical treatment, dental care, rehabilitative therapies such as physiotherapy, massage therapy or chiropractic treatments and consultation with a counsellor, psychologist or psychiatrist as long as the consultations/treatments were related to an original injury caused by domestic or sexual violence.

Obtain services from a victim services organization

Services from organizations that assist victims may be provided over a short period of time for initial intake, making referrals, assessment or treatment or longer periods to provide ongoing counselling or assistance with relocation or other practical needs arising from an incident or threat of domestic or sexual violence. For example, meeting with staff at a local shelter to arrange accommodations would be captured under this paragraph. Note, though, that, pursuant to Program Policy, simply residing in a domestic violence shelter, while itself a service contemplated under this paragraph would generally not be considered an act of “obtaining” such a service. Ongoing residency therefore would not generally by itself qualify the employee to take a leave under this paragraph. See the description about relocating below for more details.

A victim services organization might also include a referral service for victims of domestic or sexual violence, a community housing corporation or a community legal aid clinic.

Obtain psychological or other professional counselling

Psychological or other professional counselling may include counselling provided by a psychologist or psychological associate, psychotherapist, family counsellor, relationship counsellor, or social worker. Counselling or treatment by a qualified psychiatrist may also fall under either this purpose, or alternatively under medical attention. Psychological counselling may also include native healing circles or peer support in the form of a group or individual counselling. It is possible that professional counselling may be of a non-medical nature.

Relocate temporarily or permanently

Relocating temporarily or permanently may include the process of seeking accommodations, inspecting premises and meeting potential landlords or municipal housing authorities, or going through the intake process at a short or medium-term domestic violence shelter, as well as the actual process of moving furniture and possessions at the point of relocation or at a later date. It could include a period of time in which an employee moves to stay with relatives or friends. It would not include relocating to a new residence with the intimate partner or person who was responsible for the sexual or domestic violence or threat thereof, or relocating if it is unrelated to domestic or sexual violence or the threat thereof.

Seek legal or law enforcement assistance

Seeking legal or law enforcement assistance includes preparing for or participating in any civil or criminal legal proceeding related to or resulting from the violence. As examples, an employee may wish to make a police report, ^{footnote 4[4]} may be required to appear as a witness in a criminal or civil matter or may meet with legal counsel in advance of such a proceeding. An employee may also wish to consult with a lawyer or legal clinic to consider their options without proceeding further, or decide to commence a civil action.

Such other purposes as may be prescribed

At this time, there are no regulations in force relating to this section and hence no other purposes have been prescribed.

Exception – section 49.7(3)

This subsection provides that an employee is not entitled to a domestic or sexual violence leave if the employee committed the domestic or sexual violence (or threatened such action) themselves. Note that a criminal charge does not have to be laid for this subsection to apply.

Length of leave – 49.7(4)

This subsection creates the entitlement to take leave of up to 10 days (taken intermittently or in a single block) and up to 15 weeks (taken either in single weeks or a continuous period or multiple periods totalling no more than 15 weeks) within a calendar year if an employee meets the eligibility requirements of s. 49.7(2). An employee may take further leaves if the employee qualifies for the leave in a subsequent calendar year.

Note that whenever an employee meets all of the requirements for the leave, i.e. the employee has been employed for at least 13 weeks and the employee or the employee’s child has experienced domestic or sexual violence or the threat thereof and needs to take the leave for any of the enumerated purposes in s. 49.7(2), the employee will be entitled to a maximum of 10 days plus 15 weeks of leave within a calendar year under ss. 49.7(4)(a) and (b).

It is up to the employee to determine which leave is being used in relation to any particular absence, and communicate to the employer, by complying with the notice requirements of s. 49.7(10),(11),(13) and (14), whether they are drawing on the leave entitlement under either s. 49.7(4) clause (a) or (b). For example, if the employee takes a single day of leave and notifies the employer that they are taking the leave under s.49.7(4)(a), the employer is not entitled to deem the absence as an entire week of leave (but can deem a part day as a full day of leave pursuant to s. 49.7(9). Whereas if the employee takes a single day of leave and notifies the employer that they are taking the leave under s. 49.7(4)(b), the employer is entitled to deem the absence as an entire week of leave — see s. 49.7(12).

Entitlement to paid leave – section 49.7(5)

This section provides that the employee is entitled to be paid for the first five days of domestic or sexual violence leave taken within a calendar year. Any further days or weeks that are taken will be unpaid. The first five days of leave are to be paid whether the employee takes leave per s. 49.7(4)(a) (10 days of leave), or (b) (15 weeks). If an employee normally works a five day week and takes three weeks of leave under s. 49.7(4)(b) and this is the first period of leave to be taken within the calendar year, then the first 5 days of the first week would be paid, while the second and third week would not. Similarly, if in a calendar year, an employee takes three days of leave under s. 49.7(4)(a) in March and two weeks of leave under s.49.7(4)(b) in June, the employee would be entitled to be paid for all three days of the s. 49.7(4)(a) leave in March and the first two days of the s. 49.7(4)(b) leave taken in June.

Domestic or sexual violence leave pay – section 49.7(6)

This section sets out the manner of calculating the amount of domestic or sexual violence leave pay.

Note that, subject to ss. 49.7(7) and (8), the calculation entitles employees only to wages they would have earned if they were at work and not on domestic or sexual violence leave. If an employee takes any part of a day as leave under s. 49.7(4)(a) and the employer deems the employee to have taken one day of leave in accordance with s. 49.7(9), the employer is required to pay domestic or sexual violence leave pay for the time taken as domestic or sexual violence leave (i.e., when the employee is absent) plus any wages the employee earns while actively working during the day in question. The same would apply to situations where an employee takes any part of a week as leave under s. 49.7(4)(b) and the employer deems the employee to have taken one week of leave in accordance with s. 49.7(12).

This provision is also read subject to ss. 49.7(7) and (8). Per s. 49.7(7), overtime pay and shift premium amounts are not to be included in domestic or sexual violence leave pay even if the employee “would have earned” these if the employee worked. Subsection 49.7(8) provides that if a paid day of domestic or sexual violence leave falls on a public holiday, the employee is not entitled to premium pay for any leave taken.

Domestic or sexual violence leave pay for a work day can be any amount from a single hour’s pay or less to an entire day of wages, depending on how much leave is taken.

At this time, no other manner of calculating domestic or sexual violence leave pay has been prescribed.

In order to determine how much domestic or sexual violence leave pay an employee is entitled to, two things need to be established:

How much domestic or sexual violence leave was taken, or the number of hours in a work day, minus the number of hours worked, if any, and
How domestic or sexual violence leave pay will be calculated, either as
1. What an employee’s wages would have been for the day had they not taken the leave, or
2. For employees paid by performance-related wages, either an hourly rate if there is one set by contract, or the applicable minimum wage if not.

Length of the work day

If the employee works a regular work day, with set hours, this is the length of the day for the purpose of calculating domestic or sexual violence leave pay.

If the employee is scheduled to work a particular number of hours on the day on which domestic or sexual violence leave is taken, the length of the day will be what was scheduled, even if the employee regularly works a set number of hours that is different from the scheduled shift.

Amount of domestic or sexual violence leave taken

The amount of domestic or sexual violence leave taken on a single day is calculated by deducting the number of hours actually worked, if any, from the total number of hours in the day. For example, if it is determined that the employee was scheduled to work nine hours on the day, and they took five hours to attend a medical appointment and counselling session, they would be entitled to four hours of wages and five hours of domestic or sexual violence leave pay.

If the same employee did not work but took the entire day as domestic or sexual violence leave, they would be entitled to nine hours of domestic or sexual violence leave pay.

Wages the employee would have earned that day had they not taken the leave

For employees who are not paid by performance-related wages:

Hourly wage (non-salaried employees)

If the employee is paid by an hourly wage, the amount of domestic and sexual violence leave pay is the number of hours of domestic and sexual violence leave x the hourly rate.

Example 1: Employee with a single rate of pay

Employee’s wage rate is $17.25 per hour
Employee normally works 8.5 hours in a day
Employee left work to take domestic or sexual violence leave after working 1.5 hours
Employee normally works 8.5 hours per day, but worked 1.5 hours and took domestic or sexual violence leave for the rest of the day = 7 hours of domestic or sexual violence leave
Domestic or sexual violence leave (“DSVL”) pay: 7 hours x $17.25 = $120.75
In addition to DSVL pay, employee is entitled to wages for hours actually worked on the same day = 1.5 hours x $17.25)

Example 2: Employee with more than one rate of pay

Employee is paid $16.00 per hour for Job A and $17.50 per hour for Job B
Employee is scheduled to work 10 hours: first five hours on Job A and second five hours on Job B.
Employee worked for the first three hours doing Job A, and took the rest of the day as domestic or sexual violence leave: 10 hours — 3 hours = 7
Of the 7 hours of domestic or sexual violence leave, two were Job A and 5 were Job B
DSVL pay: (2 hours x $16.00 = $32.00) + (5 hours x $17.50 = $87.50) = $119.50
In addition to the DSVL pay, employee is also entitled to wages for hours actually worked

Salaried employees

If the employee is paid by salary and has a regular number of days within a pay period and regular hours, the amount of leave pay is

If the employee took a full day or shift as domestic or sexual violence leave, the employee’s daily rate (salary ÷ number of days in a pay period)
If the employee took part of a day or shift as domestic or sexual violence leave, the employee’s hourly rate (salary ÷ number of hours in a pay period) x number of hours of domestic or sexual violence leave

This is, in effect, simple salary continuance. If an employer pays an employee with a fixed salary the normal amount of pay for a week with a day of full or partial domestic or sexual violence leave in it, the domestic or sexual violence leave pay provisions of the ESA 2000 will be satisfied.

Examples: Salaried employees with regular number of days and hours within pay period

Example 1:

Employee earns $1500.00 per bi-weekly pay period and works a five day week
Employee takes one day of domestic or sexual violence leave
DSVL pay: $1500.00 ÷ 10 = $150.00

Example 2:

Employee earns $1500.00 per bi-weekly pay period and works a 40 hour week
Employee takes take four hours of domestic or sexual violence leave
Hourly rate: $1500.00 ÷ 80 = $18.75 per hour
DSVL pay: $18.75 x 4 = $75.00
Note that employee is also entitled to wages earned for the part of the day that they worked

Performance-related wages

The amount of domestic or sexual violence leave pay for an employee paid fully or partly by a system of wage calculation related to performance is the greater of the employee’s “hourly rate, if any” and the minimum wage that would have applied to the employee. Performance-related wages can include commission only, commission plus an hourly wage, piece work, or compensation as a flat-rate mechanic. An hourly rate refers to an hourly rate set by an employment contract.

Example 1: Employee earns an hourly rate + commission

Employee earns $16.00 per hour plus 2% commission on sales
Employee takes 6.5 hours of domestic or sexual violence leave
DSVL pay: $16.00 x 6.5 = $104.00
In addition to DSVL pay, employee is entitled to their hourly wage for any hours worked plus commission earned while working that day, if any

Example 2: Employee paid entirely by commission

Employee earns 10% commission on all sales, plus expenses and a car allowance
Employee is scheduled to work 8 hours, works 5 hours and makes sales of $500.00 and then takes 3 hours of domestic or sexual violence leave
DSVL pay: $applicable minimum wage rate x 3
In addition to the DSVL pay, employee is entitled to 10% commission on the $500.00 of sales that the employee made on that day.

Example 3: Employee is a homeworker paid by piece work

Employee earns $3.50 per phone call answered
Employee is scheduled to work 8.5 hours, works two hours, answers 9 phone calls, and takes 6.5 hours of domestic or sexual violence leave
DSVL pay: $applicable minimum wage x 6.5
In addition to the DSVL pay, employee is entitled to $3.50 x 9 for actual work performed on the day.

Domestic or sexual violence leave where higher rate of wages — s. 49.7(7)

This section excludes overtime pay or a shift premium (for example, an amount paid or an increase in hourly wage for working evenings or weekends) from inclusion when calculating domestic or sexual violence leave pay. The employee would be entitled to be paid for hours of domestic or sexual violence leave using the “regular” rate of pay, and not for example 1.5 times the regular rate per the overtime provisions of theESA 2000.

Example: Employee scheduled to work overtime hours on a day when domestic or sexual violence leave was taken

Employee is paid $16.00 per hour, has already worked 40 hours in a work week and is scheduled to work an additional shift of 8.5 hours (with a 30 minute unpaid meal break) on a Saturday.
Employee does not work any of the scheduled shift and takes domestic or sexual violence leave
Employee would have earned wages for 8 hours of work had they not taken the leave (4 of which would have exceeded the overtime threshold of 44 in a week)
DSVL pay: 8 hours x $16.00 per hour = $128.00

Similarly, if an employee is scheduled to work hours that would normally attract a shift premium, and if the employee misses all or some of the shift to take domestic or sexual violence leave, then domestic or sexual violence leave pay will be calculated on the employee’s base rate and would not include the shift premium.

Example: Employee entitled to shift premium pay on a day when domestic or sexual violence leave was taken

Employee is paid $15.50 per hour, plus an additional $2.50 per hour for weekend shifts
Employee is scheduled to work a Saturday shift (7.5 hours with a 30 minute unpaid meal break), takes domestic or sexual violence leave and does not work any hours
Employee would have earned wages for 7 hours of work had they not taken the leave
DSVL pay: 7 hours x $15.50 = $108.50

Domestic or sexual violence leave on public holiday — s. 49.7(8)

Under ESA Part X Public Holidays, employees who agree to, or are required to work on a public holiday may be entitled to receive premium pay of at least one and one half their regular rate for hours worked on that day. The effect of this subsection is that despite the entitlement in s. 49.7(6) to be paid “the wages the employee would have earned had they not taken the leave”, the employee is not entitled to any premium pay that they would have earned by working on the public holiday had the leave not been taken.

Example:

Employee scheduled to work on public holiday for 9 hours and paid public holiday pay plus premium pay for 9 hours
Employee worked three hours and took six hours as DSVL
Employees earns $15.00 per hour
Premium pay for hours worked on the public holiday: $15.00 x 1.5 x 3 = $67.50
DSVL pay: public holiday pay calculated in accordance with s. 24
Note that the employee is not entitled to premium pay for the six hours taken as domestic or sexual violence leave

For more information on public holiday entitlements, please see ESA Part X.

Leave deemed to be taken in entire days – section 49.7(9)

Employees may or may not need an entire day to attend to the issue that gave rise to the sexual or domestic violence leave. For example, an employee may need only a part day in order to meet with legal counsel to discuss an upcoming legal matter.

Section 49.7(9) allows an employer in this circumstance to count a part day off work as an entire day’s leave for the purpose of the 10 day entitlement where the leave is taken under s. 49.7(4)(a). However, this is the only purpose for which the employer can deem the part day off work as an entire day’s leave. It cannot deem the employee not to have worked at all on the day. The employee is entitled to be paid for the time that was actually worked, and the hours that were worked will be counted for the purposes of, among other things, determining whether the relevant overtime threshold has been reached, whether the limits on, for example, the daily and weekly hours of work have been reached, and whether the daily, weekly/bi-weekly and in-between shifts rest requirements have been met.

Note that this provision allows the employer to attribute one day's leave to a part day of absence, but it does not require the employer to do so.

Note also that the employee is entitled to be on leave only during the time they are engaging in one of the activities enumerated in s. 49.7(2).

Advising employer – section 49.7(10)

Subsection 49.7(10) requires an employee to advise their employer that the employee will be taking domestic or sexual violence leave under s. 49.7(4)(a), which establishes the 10 day portion of the leave. The subsection does not specify that the notice must be writing, and hence, if it is not, the employee will not be disentitled to the leave, oral notice is sufficient.

Same – section 49.7(11)

This subsection provides that where the employee must begin a leave under s. 49.7(4)(a) before providing the employer with the notice otherwise required under s. 49.7(10), the employee must advise the employer as soon as possible after beginning the leave. The subsection does not specify that the notice must be writing, and hence, the notice can be provided orally.

Further, an employee does not lose their right to domestic or sexual violence leave if they fail entirely to comply with ss. 49.7(10) or (11). An employee’s entitlement to domestic or sexual violence leave arises by virtue of meeting the eligibility criteria in s. 49.7(2), and it is the Program’s position that the failure to advise the employer before or as soon as possible after the leave begins does not negate that entitlement. This approach is consistent with the Program’s long-standing policy for all leaves contained in Part XIV where the structures of the entitlement and notice provisions are similar to these.

The question may arise as to whether an employer can penalize an employee for failing to give advance notice that they will be absent from work (as may be required under an employer policy) where the time off is taken as a domestic or sexual violence leave. Section 49.7(11) provides that “if an employee must begin a leave… before advising the employer, the employee shall advise the employer of the leave in writing as soon as possible after beginning it.” It is clear that the ESA 2000 contemplates situations where the employee would be unable to advise the employer in advance of starting the leave and that the employee nevertheless has a right to take leave in such situations, although the employee does have an obligation advise the employer of the leave as soon as possible after beginning it. On the other hand, the failure to give notice in advance of taking leave when the employee could have done so can be the subject of disciplinary action by the employer without violating ESA Part XVIII, s. 74. However the following points should be borne in mind:

As noted above, the employee's failure to give advance notice does not nullify the right to take the leave if the qualifying conditions in s. 49.7(2) have been met. In other words, the failure to give advance notice does not have the result that the time taken off by the employee is not domestic or sexual violence leave.
An employer may impose discipline where the employee failed to provide advance even though the employee could have done so; however, the reason for the discipline must be because of the failure to give advance notice and not because the employee exercised the right to take leave.
Likewise, an employer may impose discipline if an employee fails to provide any notice of the leave (before or after the start of the leave); however, the reason for the discipline would have to be because of the failure to provide notice and not because the employee exercised the right to take leave.

Leave deemed to Be taken in entire weeks – section 49.7(12)

Where the leave is taken under s. 49.7(4)(b), employees may or may not need an entire week to attend to the issue that gave rise to the domestic or sexual violence leave.

Section 49.7(12) allows an employer in this circumstance to count a part week off work as an entire week’s leave for the purpose of the 15-week entitlement. However, this is the only purpose for which the employer can deem the part week off work as an entire week’s leave. It cannot deem the employee not to have worked at all during the week. The employee is entitled to be paid for the time that was actually worked, and the hours that were worked will be counted for the purposes of, among other things, determining whether the relevant overtime threshold has been reached, whether the limits on, for example, the daily and weekly hours of work have been reached, and whether the daily, weekly/bi-weekly and in-between shifts rest requirements have been met.

While that this provision allows the employer to attribute one week's leave to a part week of absence, it does not require the employer to do so.

Note also that the employee is entitled to be on leave only during the time they are engaging in one of the activities enumerated in s. 49.7(2).

Advising employer – section 49.7(13)

Subsection 49.7(13) requires an employee to advise their employer that the employee will be taking domestic or sexual violence leave under clause (4)(b), which is the 15-week portion of the leave. Unlike the requirements under s. 49.7(10), s. 49.7(13) specifies that the notice must be writing.

Same – section 49.7(14)

This subsection provides that where the employee must begin a leave under clause (4)(b) before providing the employer with the notice otherwise required under s. 49.7(13), that the employee must advise the employer as soon as possible after beginning the leave. Unlike s. 49.7(11), s. 49.7(14) specifies that the notice must be writing.

Further, an employee does not lose their right to domestic or sexual violence leave if they fail entirely to comply with ss. 49.7(13) or (14). An employee’s entitlement to domestic or sexual violence leave arises by virtue of meeting the eligibility criteria in s. 49.7(2), and it is the Program’s position that the failure to advise the employer before or as soon as possible after the leave begins does not negate that entitlement. This approach is consistent with the Program’s long-standing policy for all leaves contained in Part XIV where the structures of the entitlement and notice provisions are similar to these.

The question may arise as to whether an employer can penalize an employee for failing to give advance notice that they will be absent from work (as may be required under an employer policy) where the time off is taken as a domestic or sexual violence leave. Section 49.7(14) provides that “if an employee must begin a leave…before advising the employer, the employee shall advise the employer of the leave in writing as soon as possible after beginning it.” It is clear that the ESA 2000 contemplates situations where the employee would be unable to advise the employer in advance of starting the leave and that the employee nevertheless has a right to take leave in such situations, although the employee does have an obligation advise the employer of the leave in writing as soon as possible after beginning it. On the other hand, the failure to give notice in advance of taking leave when the employee could have done so can be the subject of disciplinary action by the employer without violating ESA Part XVIII, s. 74. However the following points should be borne in mind:

As noted above, the employee's failure to give advance written notice does not nullify the right to take the leave if the qualifying conditions in s. 49.7(2) have been met. In other words, the failure to give advance written notice does not have the result that the time taken off by the employee is not domestic or sexual violence leave.
An employer may impose discipline where the employee failed to provide advance written notice even though the employee could have done so; however, the reason for the discipline must be because of the failure to give advance written notice and not because the employee exercised the right to take leave.
Likewise, an employer may impose discipline if an employee fails to provide any written notice of the leave (before or after the start of the leave); however, the reason for the discipline would have to be because of the failure to provide written notice and not because the employee exercised the right to take leave.

Evidence – section 49.7(15)

This provision gives an employer some ability to require an employee to provide proof that they are entitled to take domestic or sexual violence leave. The employer can require an employee to provide evidence that is “reasonable in the circumstances” that they are or was entitled to take the leave.

Evidence of entitlement to domestic or sexual violence leave may take many forms, though what is reasonable in the circumstances will be situation-specific. For example, it could be an email relating to an appointment for legal, professional or counselling services, an invoice or receipt if any of the professional services are provided on a “pay for service” or reimbursement basis, or a rental agreement or lease. There is nothing in the legislation that prohibits an employer from asking for a medical certificate and there could be scenarios where it would be reasonable in the circumstances to ask for a medical note.

Employers are not permitted to require detailed medical certificates citing the diagnosis and/or treatment of an employee’s medical condition that gave rise to the domestic or sexual violence leave entitlement. It is Program policy that it is reasonable to request only the following information on a medical certificate:

The expected duration of the absence,
The date the employee was seen by a health care professional, and
Whether the patient was examined in person by the health care professional issuing the certificate.

Note that it is Program policy that the employee is not required to provide evidence relating to the fact that they have experienced domestic violence or sexual violence (or the threat thereof) to an employment standards officer during the course of a claim investigation: the employee would be required to provide evidence only relating to the defined purpose(s) for which the leave was taken.

What will be reasonable in the circumstances will depend on all the circumstances in a given situation, and the general approach to what is reasonable refers to both the timelines in which the evidence is provided to the employer as well as the evidence itself. In some cases, no evidence may be available, a third party may refuse to provide evidence (for example, a domestic violence shelter may decline to issue any document that would reveal its location), or evidence may involve a security risk that a reasonable employee would not be expected to take, (for example, providing information to an employer about a temporary residence location). See ESA Part XIV, s. 50 for a discussion on what reasonable in the circumstances means in the context of evidence to support a sick leave.

Section 49.7(16) – Repealed

Confidentiality 49.7(17); Disclosure permitted – section 49.7(18)

Section 49.7(17) creates the requirement for an employer to have mechanisms in place to protect the confidentiality of any records given to the employer related to an employee taking domestic or sexual violence leave and any employer-created records relating to an employee taking the leave. Note that this provision applies to domestic or sexual violence leave only, not to other Part XIV leaves. Section 49.7(18) clarifies under what circumstances an employer may release or share this type of information.

Mechanisms

Mechanisms may refer to various things put in place by the employer to prevent records related to an employee taking domestic or sexual violence leave from being seen by anyone not authorized to receive the information by s. 49.7(18). It may include a secure password set to protect electronic information, or a physical location for records storage with limited access, such as a filing cabinet in a restricted area. It may also refer to a particular method of receiving the information, such as designating a particular human resources employee as a single point of contact to limit the risk of confidential information becoming public.

Disclosure

Section 49.7(18) clarifies under what circumstances an employer may disclose records relating to domestic or sexual violence leave. The employer may release records if the employee has provided consent: although s. 49.7(18)(a) does not state that the consent should be in writing, for record-keeping purposes consent in writing is preferred. Disclosure may also be made to an officer, another employee, consultant or agent of the employer if the information is required for the person to do their job, for example, securing evidence or checking information such as start and end dates of periods of leave for the purpose of processing payroll. In general, the information disclosed by an employer to any of these individuals is be limited to only as much information as the other employee, consultant, or agent requires to perform their duties and no more.

Section 49.7(18)(c) also permits an employer to disclose information or records as authorized or required by law. This may include release of information to an employment standards officer in the course of a claim investigation, or a police officer if a criminal investigation is commenced and the officer has a warrant for the information. It may also include a situation where an employer has a positive obligation under the Occupational Health and Safety Act to provide limited information to workers who are at risk of physical violence in the workplace due to another employee’s history of domestic violenceviolent behaviour.

Note that at the time of writing, no permitted disclosure per s. 49.7(18)(d) has been prescribed.

Section 50 – Sick leave

The sick leave provisions were introduced into the Employment Standards Act, 2000 effective January 1, 2019 by the Making Ontario Open for Business Act, 2018.

Note that, pursuant to s. 3 of O Reg 285/01, certain employees who meet the qualifying criteria for a sick leave will not be entitled to take it if taking it would constitute an act of professional misconduct or a dereliction of professional duty. Section 3 of O Reg 285/01 reads:

See section 3 of Ontario Regulation 285/01 for more information.

1. What triggers an entitlement to sick leave

Section 50(1) sets out the qualifying conditions an employee must meet in order to be entitled to sick leave. To qualify, the employee must have been employed by the employer for at least two consecutive weeks and the need for the leave must be because of one of the following events:

personal illness
personal injury, or
personal medical emergency

Sick leave is an unpaid leave. If an event is not listed in s. 50(1), the employee is not entitled to sick leave for that event. If the employee has not been employed for at least two consecutive weeks, the employee is not entitled to sick leave.

Injury, illness or medical emergency

For the most part, the meaning of these terms is self-evident.

One issue that arises with respect to leaves taken because of illness, injury or medical emergency is whether an employee is entitled to take sick leave for pre-planned or so-called "elective" surgery. Because the surgery is scheduled ahead of time, it is not a medical "emergency". However, because, generally speaking, people undergo surgery for the treatment or prevention of a medical condition, it is Program policy that most surgeries, including those that are pre-planned or elective, that are performed to address or prevent manifestation of a medical condition (e.g., laser eye surgery to correct poor distance vision) are because of an illness or injury and, consequently, entitle an employee to sick leave. This does not include medically unnecessary plastic surgeries that are performed for purely cosmetic reasons and that are not related to an underlying illness or injury; these types of surgeries are not because of an illness or injury.

Another issue that arises concerns doctor's appointments. An appointment for an annual check-up would generally not trigger an entitlement to leave unless it has been scheduled in respect of an illness, injury or medical emergency. However, if an employee had regularly scheduled appointments for the treatment or management of a chronic medical condition such as Crohn's disease or diabetes, those appointments would trigger an entitlement because they are absences related to an illness.

Regular prenatal appointments scheduled for an employee during the course of a normal, healthy pregnancy would not trigger an entitlement to sick leave because a healthy pregnancy is not an illness. (Note that in this regard, consideration should also be given to the Ontario Human Rights Code, RSO 1990, c H.19 obligations to accommodate pregnant employees. Pursuant to the Code, an employer may be required to accommodate a pregnant employee's need for regular prenatal visits up to the point of undue hardship.) However, if a pregnant employee has an illness or medical condition (even if related to or exacerbated by the pregnancy) they would be entitled to sick leave as the doctor's appointments would be considered to be related to an illness.

Whether an illness, injury or medical emergency was caused by the employee's own actions or by external factors beyond the employee's control is irrelevant to the question of an employee's entitlement to sick leave. For example, an employee who broke her tailbone while tobogganing at night in an inebriated state would not be disentitled to sick leave just because the injury was caused by her own carelessness. While some may argue that in such cases the employee should not be entitled to sick leave days, there is no basis in the legislation to support such a view, and it is Program policy that absences for illness or injury, caused by the employee's own action can qualify as sick leave days.

2. Designating absences as sick leave

For employees who are entitled to sick leave as provided for in s. 50, questions have arisen as to whether an employee who is absent from work for one of the reasons listed in s. 50(1) must use one of their three days of sick leave. For further information on this issue refer to the discussion under ss. 50(3) and (4).

Limit – section 50(2)

50(2) An employee’s entitlement to leave under this section is limited to a total of three days in each calendar year.

This section provides that an employee is entitled to take up to three days of sick leave every calendar year. The entitlement is to a total of three days of sick leave per calendar year, not three days per personal illness, injury or medical emergency.

The ESA 2000 does not place any restrictions on whether the three days have to be taken consecutively or individually. Employees can take sick leave in part days (although see s. 50(5), which allows employers to deem one day's leave to be taken when an employee takes part of a day off work for sick leave), entire days, or in periods of more than one day.

The question arises as to whether the three-day entitlement should be prorated for employees who are part-time, or who started their employment partway through a calendar year but have been employed for at least two consecutive weeks. There is nothing in the legislation to suggest that employees who are eligible for sick leave should be entitled to less than three days a calendar year in any of these situations. Accordingly, it is Program policy that pro-rating of the three-day entitlement for part-time employees or employees who were hired partway through a calendar year is not permitted.

The ESA 2000 does not provide for the carryover of unused days of sick leave from one calendar year into the next calendar year. In other words, employees do not have a statutory right to "bank" unused sick leave days year over year.

It is Program policy that an employee who quits or is terminated and who is subsequently re-hired by the same employer during the same calendar year is entitled to a new three-day entitlement after two consecutive weeks of employment upon their re-hire. This is the case even if the employee took some sick leave during their first term of employment in that calendar year.

See "Greater Right or Benefit" at Part III, section 5(2) for a discussion of the application of the “greater right or benefit” provision to sick leave. See also the discussion at subsection 50(7) – (9) for information regarding the interplay between contractual leave entitlements and statutory entitlements to sick leave where the contractual leave does not amount to a “greater right or benefit”.

Advising employer – section 50(3) and 50(4)

50(3) An employee who wishes to take a leave under this section shall advise his or her employer that he or she will be doing so.

50(4) If the employee must begin the leave before advising the employer, the employee shall advise the employer of the leave as soon as possible after beginning it.

1. Advising Employer

Section 50(3) requires employees to tell their employers ahead of time that they will be taking sick leave. In circumstances where that cannot be done, the employee is required, pursuant to s. 50(4), to inform the employer as soon as possible after beginning the leave.

The ESA 2000 does not require the employee to advise the employer of the sick leave in writing. Oral notice is sufficient.

The ESA 2000 does not specify any particular method by which the employer is to be advised that the employee will be taking sick leave. Consequently, an employee would be complying with this section whether they, for example, advised the employer by phone, left a note on the manager's desk or had a colleague take a message to the employer on their behalf.

Employees do not lose their right to sick leave if they fail to comply with ss. 50(3) or (4). An employee's entitlement to sick leave arises by virtue of one of a number of “triggering events” arising, and it is the Program's position that the failure to advise the employer before or as soon as possible after the leave begins does not negate that entitlement. This approach is consistent with the Program's long-standing policy in the pregnancy and parental leave context, where the structure of the entitlement and notice provisions are similar to these. See Employment Standards Act, 2000 Part XIV, section 46(4) and section 48(4).

An issue has arisen as to whether an employer can penalize an employee for failing to give advance notice that they will be absent from work (as may be required under an employer policy), where the time off is a sick leave under the ESA 2000. Sections 50(1) describes the employee's entitlement. Section 50(3) requires the employee taking sick leave to advise the employer that they are taking the leave, and s. 50(4) provides that "if the employee must begin the leave before advising the employer, the employee shall advise the employer of the leave as soon as possible after beginning it." It is clear from s. 50(4) that the ESA 2000 contemplates situations where the employee would be unable to advise the employer in advance of commencing the sick leave. Part of the sick leave entitlement under the ESA 2000 is the right to take the sick leave even if advance notice cannot be given, with the proviso that the employee must advise the employer of the leave as soon as possible after beginning it.

The failure to give notice in advance of taking leave, when it would have been possible for the employee to do so, can be the subject of disciplinary action by the employer without violating s. 74 (the anti-reprisal provision). However, the following points should be considered:

The employee's failure to give advance notice would not be a lawful basis on which to deprive the employee of the right to take the leave if the qualifying conditions in s. 50(1) have been met. An employer could not, for example, take the position that failure to give advance notice when it would have been possible for the employee to do so will result in the time taken off not being counted as a sick leave day.

Any discipline for failing to provide notice in situations where such notice is required under s. 50(3) (i.e., where s. 50(4) does not apply) would have to be appropriately linked to the failure to give advance notice and must not, in effect penalize the employee for exercising the right to leave. The motive for any discipline that the employer does impose must clearly be the employee's failure to give advance notice and not the taking of the leave itself.

In addition, an employer would be able to impose discipline if an employee fails to provide any notice of the sick leave (before or after the leave), or if the employee provides notice of the leave so late that one wouldn’t reasonably be able to say that it falls within s. 50(4). Again, however, the employer's disciplinary action would have to be appropriate, and in no way a penalty or reprisal for the employee having taken the leave, but only for the failure to give notice. In this regard see Ryding-Regency Meat Packers Ltd. v. U.F.C.W., Local 1000A. In that case, the arbitrator concluded that s. 50(1) establishes an entitlement to leave when the qualifying events have occurred (this case referred to the former personal emergency leave, which an employee could become entitled to take when a defined relative became ill and the employee took time off work to care for the relative). The fact that the employee's grandmother was ill was not disputed. Because s. 50(1) separate from the notice requirements, the employee could be disciplined for not giving notice that he was taking or had taken leave but did not lose his entitlement to the leave itself.

Leave deemed to be taken in entire days – section 50(5)

50(5) For the purposes of an employee’s entitlement under subsection (1), if an employee takes any part of a day as leave under this section, the employer may deem the employee to have taken one day of leave on that day.

Employees may not need an entire work day to attend to the event that gave rise to the sick leave, and might only take part of a day off as sick leave. Section 50(5) allows an employer in this situation to count a part-day off work as an entire day's leave for the purpose of counting the absence against the three-day leave entitlement. This is the only purpose for which the employer can deem the part day off work as an entire day's leave. The employer cannot deem the employee not to have worked at all on the day. Where an employee worked a partial day and took a part-day of sick leave, the employee is entitled to be paid the earnings for the time that was actually worked that day. As well, the hours that were worked will be counted for the purposes of, among other things, determining whether the relevant overtime threshold has been reached, whether the limits on, for example, the daily and weekly hours of work have been reached, and whether the daily, weekly/bi-weekly and in-between shifts rest requirements have been met.

For clarity, this provision does not require employees to take sick leave in full day periods. It simply allows an employer to reduce the employee’s three-day entitlement by a day if an employee is on sick leave for only part of a day.

Note that this provision allows the employer to attribute one day's leave to a part day of absence. It does not require the employer to do so.

For example, an employee goes home early from work because of the stomach flu. She worked a four-hour day rather than her usual eight hours and takes sick leave. In that case, the employer may consider the employee to have used up one of her three days of sick leave and the employee would be paid her earnings for the four hours that she actually worked.

Just because an employer may consider an employee to have used one day of leave due to a part day of absence does not mean that the employee then has the right to take the entire day off if the triggering event did not last the entire day. For example, an employee's shift is from 9 a.m. to 5 p.m. From 10 a.m. to 11 a.m., he has to attend a medical appointment in relation to a chronic medical condition he suffers. The employee claims the absence as a sick leave. His employer is entitled to reduce the employee’s sick leave entitlement by one day, but the employee must nevertheless return to work after the appointment is over. Employees have the right to be away from work under the sick leave provisions of the ESA 2000 only for as long as the event that triggered the entitlement lasts. After the triggering event is over, the employee's normal obligations to attend at work are resumed.

In addition, employers cannot prohibit employees who took a part day of leave from returning to work for the remainder of their shift. (This is because of, among other reasons, the employer’s s. 53 obligation to reinstate the employee at the end of the leave and the s. 74 prohibition against penalizing employees for having taken a leave.)

An issue has arisen as to whether an employer could exercise its discretion and deem a partial day absence as a full day for some employees, but not for others, or whether this might allow employers to selectively punish employees who have too many absences in violation of the reprisal provisions of the ESA 2000.

For instance, an employer counts a three-hour sick leave as a full day's leave for employee A but not for employee B, who also takes a three-hour sick leave because the employer considers employee B to be a better worker than employee A. Although this might be unfair as between employee A and B, it would not be a violation of the ESA 2000, as it would not be a reprisal for exercising a right under the ESA 2000.

If, on the other hand, the motivation for the differential treatment was that employee A frequently took sick leave every year of only a few hours, and the employer assigned a full day's absence to these short leaves as a way to ensure employee A used up all of their statutory entitlement as soon as possible because the employer found it inconvenient for the employee to be away for many short periods of time, that would be an unlawful reprisal.

As another example, it would also be an unlawful reprisal if the motive for the differential treatment was because employee A made inquiries about ESA rights or refused to agree to average hours for overtime pay purposes.

Evidence – section 50(6)

Subsection 50(6) gives an employer the ability to require an employee to provide proof that they are or were entitled to take sick leave. The employer can require an employee to provide evidence that is reasonable in the circumstances that they are or were entitled to take the leave.

Evidence of entitlement to sick leave may take many forms. For example, if it is reasonable in the circumstances, it could take the form of: a receipt from a drugstore or pharmacy; or a medical “bracelet” from a hospital.

What will be reasonable in the circumstances will depend on all of the circumstances in any given situation. In FAG Bearings Ltd. v Francis, 2005 CanLII 35873 (ON LRB), a decision made in relation to the former personal emergency leave provisions, the employer had a disciplinary policy that provided for a four-step progression for any infraction of a company rule or policy. Under the disciplinary policy, an employee's employment would be terminated if there was a fourth disciplinary incident in a rolling twelve-month period. In this case, the third disciplinary incident was a response to the claimant failing to provide a doctor's note when he left work early because of back pain. The employer argued that the discipline was a consequence of the employee's failure to provide a doctor's note within a reasonable period of time following the absence, and not because he had exercised a right to emergency leave under the ESA 2000. The employee argued that he should have been provided with more time to provide a note. The Ontario Labour Relations Board concluded that the requirement to provide evidence reasonable in the circumstances contemplates that both the evidence required and the timelines for providing it be reasonable in the circumstances. The Board noted that the right to leave would be defeated if an employee who is legitimately entitled to it could be disciplined for failing to comply with an unreasonable time frame set by their employer. Conversely, the employer's right to verify entitlement to a leave would also be defeated if it could not require the employee to provide the evidence within a reasonable period of time. In this case, the Board found that the time to provide the evidence had been reasonable and the discipline was imposed solely as a consequence of the employee's failure to provide evidence as required under the Employment Standards Act, 2000. On that basis, the Board found the employer had not violated section 74 of the ESA 2000, since the discipline was not related to the exercise of the employee's right to leave under section 50(1).

Another helpful decision relating to evidence in the context of the former personal emergency leave is Re Tilbury Assembly Ltd. and United Auto Workers, Local 251. There, an employee with an absenteeism problem had left her shift early complaining of a severe headache. The employer had a policy that this employee was required to provide a physician's note in all cases of absence due to personal illness because of her history of absenteeism. In this instance, the employee did not obtain such a note, but instead bought some extra-strength pain relievers and took them and went to bed in a dark room, which was how she customarily dealt with this type of headache, which she experienced two or three times a year. Although the employee provided a note and receipt from the pharmacist from whom she purchased the pain relievers, the employer disciplined her for the failure to produce a physician's note. The employee grieved. The arbitrator held that the ESA 2000 gives an employer a right to require an employee to produce evidence, but only such evidence as was reasonable in the circumstances. While the employee's record of absences was one circumstance to be taken into account in determining what was reasonable, it was outweighed by the fact that the employee did have a note and receipt from a pharmacist, by the fact that her experience with the type of headache she had indicated that taking the pain relievers and going to bed in a dark room would provide effective treatment and by the fact that employee would likely face a considerable wait in a hospital emergency facility in order to see a doctor for her headache. The arbitrator found that the employer's requirement of a note from a physician was not reasonable in these circumstances and reversed the discipline.

What evidence is reasonable in the circumstances (including whether it is reasonable for the employer to require a medical note) will be fact-specific. The factors and principles that may be relevant when assessing “reasonableness” are listed below.

The duration of the leave. For example, it may not be reasonable, depending on all the circumstances, for an employer to require an employee who was away from work for only one day with a cold to provide a doctor’s note.
Whether there is a pattern of absences or a record of absenteeism. For example, if an employee claims to be ill and takes sick leave only on Friday afternoons during the summer, it may be reasonable for the employer to require some proof of the illness even though the leave is of short duration.
Whether any evidence is available. For example, an employer did not ask an employee who was on a sick leave for a doctor’s note until after the employee had returned to work. If the employee is no longer ill at that point, it may be impossible for him or her to get any evidence of the illness.
Where evidence is available, but only with some difficulty, whether it is reasonable to expect the employee to obtain the evidence (See the Tilbury Assembly decision, discussed above.)
The cost of the evidence. For example, it may not be reasonable, depending on all the circumstances, for an employer to require an employee who earns minimum wage to obtain a doctor’s note if the doctor charges the employee $25 for it.
The employee had earlier asked for the time off for non-sick leave reasons for the time at which the absence occurred but was denied.
The employee had announced plans in advance to miss work.

In circumstances where it is reasonable to require a medical certificate Ffor the purpose of determiningsupporting an employee’s entitlement to sick leave under the ESA, it is’s Program policy that employers are not permitted to require detailed medical certificates citing the diagnosis and/or treatment of the medical condition of the employee that gave rise to the sick leave entitlement. It is Program policy that it is reasonable to request only the following information on a medical certificate:

The expected duration of the absence (or, if the absence is over, the date(s) of the absence addressed by the certificate),
The date the employee was seen by a health care professional, and
Whether the patient was examined in person by the health care professional issuing the certificate.

Note that any evidence the employee provides to support the employee’s claim of an entitlement to sick leave is just that — evidence — and is not necessarily determinative of the question of whether the employee had an entitlement. Depending on the circumstances, it may be reasonable for the employer to require additional evidence from the employee.

Note also that the Program policy restrictions on what an employer can require on medical certificates apply only to medical certificates as evidence in support of an employer’s entitlement to statutory sick leave. The Program’s policy does not apply to the content of medical certificates in the context of other employment issues such as return-to-work situations or for accommodation purposes.

Sick leave taken under employment contract – section 50(7)

Same, application of act to deemed leave – section 50(8)

Same, application of subs. (5) to deemed leave – section 50(9)

These provisions, when read together, establish what happens when an employee takes a leave of absence under an employment contract (which includes a collective agreement) in circumstances that would also entitle the employee to a leave under s. 50 of the ESA.

“Circumstances” refers only to the triggering event that would entitle the employee to statutory sick leave (i.e. the employee is absent because of personal illness, injury or medical emergency).

It is Program policy that “circumstances” does not include the two-week employment eligibility criterion. Accordingly, these provisions will be triggered when an employee takes a leave of absence under an employment contract due to personal illness, injury or medical emergency even during the first two weeks of employment; this is the case regardless of the fact that the employee does not have the right to take statutory sick leave during this time.

Subsections 7 to 9 codify the long-standing Program policy on the interplay between contractual leave entitlements and statutory leave entitlements where the contractual leave does not amount to a greater right or benefit than statutory sick leave under s. 5(2).

(Note that if a contract does provide a greater right or benefit than the statutory sick leave entitlement —the determination of which includes consideration of reprisal protections and the entitlements under “general provisions concerning leaves” such as the right to reinstatement — the contractual leave provision applies and s. 50, including these subsections, does not apply. See the discussion of s. 5(2) for details.)

In general terms, subsections (7)-(9) provide that an employee who claims a contractual benefit for an absence — in circumstances in which the employee would also be entitled to take sick leave — does not give the employee an entitlement to those contractual absences plus an additional three days of sick leave.

If an employee takes a paid or unpaid leave of absence under an employment contract in circumstances for which he or she would also be entitled to take a leave under section 50, the employee is deemed to have taken a day of sick leave and the absence will reduce the employee’s three-day per calendar year sick leave allotment accordingly. Note that this provision must be read in conjunction with subsections 8 and 9, discussed below.

For this provision to apply, the reason for the absence (i.e. the "triggering event") must qualify for both the contractual leave and the statutory leave.

Some examples:

An employee’s contract of employment provides three paid “flex days” that can be used for any reason. The employee is absent from work for three days because she is ill. She claims the benefit of these “flex days” because they are a paid leave. Subsection 50(7) deems the employee to have used three ESA sick leave days. As a result, the employee will have no further entitlement to sick leave under the ESA 2000.
An employee’s contract of employment offers “flex days” that can be used for any reason, and the employee uses one of those days to deal with a matter that is unrelated to a personal illness or medical emergency (for example, to attend a child's dance recital). In this situation, the employee would not be deemed to have taken a day of sick leave pursuant to this provision. This is because an employee is not entitled to take a statutory sick leave day to attend a child's dance recital, and, therefore, the contractual leave was not taken “in circumstances for which [the employee] would also be entitled to take a [sick leave]”.

This provision has the potential to deem a statutory leave to be taken when a contractual leave is taken. It does not do the converse: it does not deem a contractual leave to be taken if a statutory leave is taken in circumstances for which the employee would also be entitled to take a contractual leave. The question as to whether statutory absences will also draw down against the contractual right is not a matter for the employment standards program.

If an absence has been deemed to be a statutory leave under ss. 50(7), this provision establishes that all requirements and prohibitions under the ESA, 2000 apply to the absence.

This includes all requirements and prohibitions in section 50 as well as general rights and obligations found in other sections and/or Parts of the Act.

Examples include: the right to reinstatement, maintenance of benefits (if relevant), protection from reprisal, obligations on the employee with respect to advising the employer of the leave and providing evidence reasonable in the circumstances to demonstrate an entitlement to the leave (where required by the employer).

This provision states that subsection (5) applies, with necessary modifications, to a leave that is deemed to be a sick leave pursuant to subsection (7).

This means that if an employee takes a partial-day leave pursuant to his or her contract of employment, and that leave is deemed to be a day of sick leave under subsection (7), the employer may deem the absence to be a full day of sick leave and reduce the employee’s 3-day per calendar year “allotment” of sick days accordingly.

The section 50 “personal emergency leave” (PEL) provisions of the Employment Standards Act, 2000 were repealed effective January 1, 2019 as a result of the Making Ontario Open for Business Act, 2018. The PEL provisions are therefore no longer in force. However, employees may still have a complaint relating to PEL that arose during the period of time when that leave was in force. For that reason, the Program’s interpretation of the s. 50 PEL provisions remains as part of this publication, though the text appears in red to highlight that the relevant provisions have been repealed.

Section 50 – Personal emergency leave – REPEALED

Subsection 50(0.1) was repealed effective January 1, 2019 as a result of the Making Ontario Open for Business Act, 2018. The discussion of this provision is being maintained in this publication since employees may still have a complaint relating to a situation that arose when the provision was in force. The text appears in red to highlight that the provision has been repealed.

Definitions – section 50(0.1)

This subsection defines the term “qualified health practitioner” for the purposes of section 50. This term is used in subsection (13), which provides that an employer cannot require an employee to provide a certificate from a qualified health practitioner as evidence that the employee is entitled to take a leave under this section.

Where care or treatment is provided in Ontario:

"A person who is qualified to practise as a physician" means a member of the College of Physicians and Surgeons of Ontario (this includes psychiatrists);
"A person who is qualified to practise as a registered nurse" means in accordance with O Reg 275/94 of the Nursing Act, 1991, SO 1991, c 32, a member of the College of Nurses of Ontario who holds a general or extended certificate of registration as a registered nurse (nurse practitioners hold extended certificates); and
"A person who is qualified to practise as a psychologist" means an individual who is a member of the College of Psychologists of Ontario.

Personal emergency leave – subsection 50(1) and (2)

Subsections 50(1) and (2) were repealed effective January 1, 2019 as a result of the Making Ontario Open for Business Act, 2018. The discussion of these provisions is being maintained in this publication since employees may still have a complaint relating to a situation that arose when the provisions were in force. The text appears in red to highlight that the provisions have been repealed.

50(1) An employee is entitled to a leave of absence because of any of the following:

A personal illness, injury or medical emergency.
The death, illness, injury or medical emergency of an individual described in subsection (2).
An urgent matter that concerns an individual described in subsection (2).

(2) Paragraphs 2 and 3 of subsection (1) apply with respect to the following individuals:

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 grandparent, step-grandparent, grandchild or step-grandchild of the employee or 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.

The personal emergency leave provisions were introduced by the Employment Standards Act, 2000.

Sections 50(1) and 50(2) set out the qualifying conditions an employee must meet in order to be entitled to a personal emergency leave of absence. To qualify, the need for the leave must be due to one of the specified events and the event must relate to one of the specified individuals.

Note that, pursuant to s. 3 of O Reg 285/01, certain employees who meet the qualifying criteria for a personal emergency leave will not be entitled to take it if taking it would constitute an act of professional misconduct or a dereliction of professional duty. Section 3 of Ontario Regulation 285/01 reads:

See section 3 of Ontario Regulation 285/01 in the Manual for more information.

1. Events that trigger an entitlement to personal emergency leave

Sections 50(1) and 50(2) list the events, and the people to whom the events must relate, that entitle employees to take personal emergency leave. The list is exhaustive. If an event or the person to whom the event relates is not listed in ss. 50(1) and 50(2), the employee is not entitled to personal emergency leave.

Employees can take a personal emergency leave of absence for the following reasons:

A personal illness, injury or medical emergency.
One of the following if it relates to certain specified individuals:
1. Death,
2. Illness,
3. Injury,
4. Medical emergency, or
5. Urgent matter.

The events described in subsection (2) above must relate to any of the following people:

The employee's spouse (which includes a same-sex spouse);
A parent, step-parent, foster parent, child, step-child, foster child, grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee's spouse (which includes a same-sex spouse);
The spouse (which includes a same sex spouse) of the employee's child;
The employee's brother or sister; and
Any relative of the employee not listed above who is dependent on the employee for care or assistance.

The terms "parent" and "spouse" are defined in section 45 of the Employment Standards Act, 2000 – see Part XIV, section 45.

If the event or person to whom the event relates is not contained in the above list, the employee is not entitled to a personal emergency leave. For example, while an "urgent matter" in respect of a person specified in section 50(2) entitles an employee to personal emergency leave, a personal urgent matter does not (unless the urgent matter also falls into the category of "illness, injury or medical emergency").

i. Death, illness, injury or medical emergency

For the most part, the meaning of these terms is self-evident. One issue that arises in respect of personal emergency leave taken because of the death of a specified family member or dependent relative is whether the leave days must be taken coincident with the death or can be taken at some later time. Section 50(1) states that an employee is entitled to the leave "because" of the death, illness, injury or medical emergency of an individual described in s. 50(2). As a result, time off work to attend a burial, internment of ashes or memorial service for the deceased that occurs at any time after the death qualifies as a personal emergency leave as it is taken because of the death.

An issue that arises with respect to leaves taken because of illness, injury or medical emergency is whether an employee is entitled to take personal emergency leave for pre-planned or so-called "elective" surgery. Because the surgery is scheduled ahead of time, it is not a medical "emergency". However, because, generally speaking, people undergo surgery for the treatment or prevention of a medical condition, it is Program policy that most surgeries, including those that are pre-planned or elective, that are performed to address or prevent manifestation of a medical condition (e.g., laser eye surgery to correct poor distance vision) are because of an illness or injury and, consequently, entitle an employee to personal emergency leave. This does not include medically unnecessary plastic surgeries that are performed for purely cosmetic reasons and that are not related to an underlying illness or injury; these types of surgeries are not because of an illness or injury.

Regular prenatal appointments scheduled for an employee during the course of a normal, healthy pregnancy would not trigger an entitlement to personal emergency leave because a healthy pregnancy is not an illness. Note that in this regard, consideration should be given to the Ontario Human Rights Code, RSO 1990, c H.19 obligations to accommodate pregnant employees. Pursuant to the Code, an employer may be required to accommodate a pregnant employee's need for regular prenatal visits up to the point of undue hardship. However, if a pregnant employee has an illness or medical condition (even if related to or exacerbated by the pregnancy) they would be entitled to personal emergency leave as the doctor's appointments would be considered to be related to an illness.

However, see the discussion at subsections (12) and (13) below regarding evidence that an employee may be required to provide an employer to show that they are entitled to a personal emergency leave.

Whether an illness, injury or medical emergency was caused by the employee's own actions or by external factors beyond the employee's control is irrelevant to the question of an employee's entitlement to personal emergency leave. For example, an employee who broke her tailbone while tobogganing at night in an inebriated state would not be disentitled to the personal emergency leave just because the injury was caused by her own carelessness. While some may argue that in such cases the employee should not be entitled to personal emergency leave days, there is no basis in the legislation to support such a view, and it is Program policy that absences for illness or injury, caused by the employee's own action can count as personal emergency leave days.

See below for a discussion on "Designating Absences as Personal Emergency Leave."

ii. Urgent matter

One of the events that entitle an employee to personal emergency leave is an "urgent matter" that concerns any of the people listed in s. 50(2). Urgent matter is not defined in the ESA 2000. It is Program policy that one of the traits of an "urgent matter" is that the event be unplanned or out of the employee's control, and raise the possibility of serious negative consequences, including emotional harm, if it is not responded to. For example, it is an urgent matter if:

An employee's nanny or babysitter calls in sick;
The basement of an elderly parent floods and the parent is unable to deal with the situation; or
An employee has an appointment to meet with their child's counselor to discuss behaviour problems at school. The appointment is during the employee's shift, and the appointment could not be rescheduled outside of the employee's working hours.

Some examples of situations that are not an urgent matter include:

An employee wishing to attend a brother's wedding; or
An employee wishing to attend a child's play.

While both of these events are out of the employee's control, the employee's inability to attend these events does not raise the possibility of serious negative consequences.

When determining whether an event is an urgent matter, an objective standard is applied. That is, the employee's subjective perception of the urgency of the matter is not determinative. However, subjective factors and circumstances that are particular to the individual employee should be taken into account. The question to ask is, would a reasonable employee in the same circumstances as the employee in question have felt that the matter was an urgent one?

iii. Relative of the employee who is dependent on the employee for care or assistance

Section 50(1) entitles employees to a personal emergency leave if there is a death, illness, injury, medical emergency or urgent matter concerning a person specified in paragraphs 1 to 6 of subsection 50(2), as well as a person described in paragraph 7 of subsection 50(2), that is, "a relative of the employee who is dependent on the employee for care or assistance".

Relative

The ESA 2000 does not specify how close the familial relationship has to be in order to meet this criterion. The person must only be a "relative". In the absence of a definition of relative, the term must be interpreted in accordance with its plain, ordinary grammatical sense and general acceptation.

Black's Law Dictionary, 10th ed., defines the term relative, as follows:

A person connected with another by blood or affinity; a person who is kin with another. Accordingly, it is Program policy that to be a relative of an employee, the individual should be related through blood or through marriage, adoption or common law relationships between people of the same or opposite sex who are not married. Conversely, it is Program policy that "relative" in s. 50(2), paragraph 7 will not include those individuals who are not connected either by blood or through marriage, adoption or a common law relationship, since including them would be extending the meaning of relative beyond the ordinary, commonly understood meaning.

With respect to common law relationships, the question arises as to how long the individuals have to live together in a conjugal relationship before it can be said that a spousal relationship exists, thus granting relative status to relatives of the employee's spouse. The answer is that there is no minimum amount of time that the individuals must be together in order to qualify as a common law spouse for the purpose of entitlement to personal emergency leave. Unlike the Family Law Act, RSO 1990, c F.3 which, for the purposes of support obligations, limits the definition of unmarried "spouse" to those people who have lived together continuously for three years or are in a relationship of some permanence if they are the birth or adoptive parents of a child, s. 45 of the ESA 2000 requires only that the individuals "live together in a conjugal relationship outside marriage".

Accordingly, it is Program policy that the relationship of relative can be established through a common law relationship between people of the same or opposite sex once there is a conjugal relationship, regardless of how long it has been. (Note that the entitlement to personal emergency leave does not arise solely by virtue of the illness, injury, medical emergency, death or urgent matter of a relative. If that relative is not in a category specified in paragraphs 1 through 6, that relative must be dependent on the employee for care or assistance before there is an entitlement to personal emergency leave. See the discussion below).

Dependent

An employee is entitled to take personal emergency leave with respect to the illness, injury, medical emergency, death or urgent matter of an individual not in a category specified in paragraphs 1 through 6, only where that individual is a relative who is "dependent on the employee for care or assistance". The ESA 2000 does not specify how dependent a relative has to be on the employee for this provision to apply. It only requires that there be a dependence for care or assistance. As individuals can be dependent on one another for care or assistance without being entirely dependent on that person, it is Program policy that this provision will apply to any relative who is reliant on the employee to some degree for care or assistance in meeting their basic living needs. The relative does not have to be completely reliant on the employee for all of their needs for this provision to apply.

There is no requirement that the relative be living with the employee for this provision to apply.

The type of event that entitles an employee to a personal emergency leave does not have to relate to the particular type of dependence the relative has on the employee in order to meet this criteria. For example, an employee's great-uncle depends on the employee to purchase his prescriptions and ensure he takes his medication. The employee wants to take personal emergency leave because her great-uncle's house is broken into and he needs assistance. The employee will be entitled to personal emergency leave even though the matter that is being responded to (a break-in) is unrelated to the type of dependence (ensuring that medication is taken).

2. Designating absences as personal emergency leave

For employees who are entitled to personal emergency leave as provided for in s. 50, questions have arisen as to whether an employee who is absent from work for one of the reasons listed in s. 50(1) must use one of their 10 days of personal emergency leave. It is Program policy that where an employee is entitled to personal emergency leave and is absent due to one of the reasons listed in s. 50(1), it is the employee (not the employer) that decides whether to designate an absence a personal emergency leave. An employee may be entitled to personal emergency leave and be absent from work due to one of the reasons listed in s. 50(1) and decide not to claim the absence as a personal emergency leave day. This would not be considered as contracting out of the ESA 2000 if an employee does not take advantage of their leave entitlements; the employee has merely chosen not to exercise them.

Step 1: The employee, who is entitled to personal emergency leave, is absent due to one of the reasons listed in s. 50(1).

Step 2: Did the employee know of their right to personal emergency leave?

If the answer is no, then the default is that the absence is considered to be personal emergency leave with the corresponding reprisal protection. An employee does not lose their right to any of the leaves provided for under the ESA 2000 because they were unaware of their entitlements.

If the employee is aware of their right to personal emergency leave go to step 3.

Step 3: Does the employee wish to designate the absence as personal emergency leave?

If the answer is yes, then the absence is a personal emergency leave with the corresponding reprisal protections.

If the employee does not wish to designate the absence as a personal emergency leave, and the absence cannot be considered an authorized absence on some other ground (e.g., another leave under the ESA 2000 or vacation authorized by the employer), the absence would have no statutory reprisal protection. For this reason, an employee who takes a day off for a reason that would qualify under s. 50 but who would prefer not to have the day charged against their personal emergency leave allotment may feel effectively forced into designating the day as such a leave. However, this in itself does not constitute any violation of the ESA 2000; it is not unlawful for an employer to inform an employee that should they not designate an absence as a personal emergency leave day, then it would be considered an unexcused absence that will lead to disciplinary action.

Note that if an employer offers a benefit plan for sick days, bereavement days or for any other event that any leave under the ESA 2000 can be taken, and the employee opts to claim benefits under the plan, it is Program policy that the employee has in effect designated the absence as a day of statutory leave and it will reduce the employee’s ESA 2000 entitlement to that particular statutory leave accordingly. For example, if an employer offers four paid bereavement days under a benefits plan and the employee is absent four days because of the death of a parent and claims benefits under the plan, the employee is considered to have used four of their PEL days. Note also that there is nothing in the ESA 2000 that would prohibit an employer from subtracting any personal emergency leave days that are taken from any paid days provided by a benefit plan offered by an employer or from any other contractual leave entitlement (e.g. “flex days”). Notably, while this is not prohibited under the ESA 2000, an employment contract may address the issue of whether any PEL days count against any contractual leave entitlements.

Where a benefit plan offered by the employer constitutes a true greater right or benefit than the personal emergency leave standard, then the terms of the contract will apply instead of the standard (as the employee will have a greater contractual entitlement) and the issue of an employer drawing down on personal emergency days leave becomes moot.

While not prohibited under the ESA 2000, an employment contract may address the issue of whether any work-related injury governed by the “Workplace Safety and Insurance Act” (WSIA) may count against PEL days.

Advising employer – subsection 50(3) and (4)

Subsections 50(3) and (4) were repealed effective January 1, 2019 as a result of the Making Ontario Open for Business Act, 2018. The discussion of these provisions is being maintained in this publication since employees may still have a complaint relating to a situation that arose when the provisions were in force. The text appears in red to highlight that the provisions have been repealed.

Section 50(3) requires employees to tell their employers ahead of time that they will be taking personal emergency leave. In circumstances where that cannot be done, the employee is required, pursuant to s. 50(4), to inform the employer as soon as possible after beginning the leave.

The ESA 2000 does not require the employee to advise the employer of the personal emergency leave in writing. Oral notice is sufficient.

In fact, the ESA 2000 does not specify any particular method by which the employer is to be advised that the employee will be taking personal emergency leave. Consequently, an employee would be complying with this section whether they, for example, advised the employer by phone, left a note on the manager's desk or had a colleague take a message to the employer on their behalf.

An employee does not lose their right to emergency leave if they fail to comply with subsection 50(3) or (4). An employee's entitlement to emergency leave arises by virtue of having one of a number of defined "emergencies", and it is the Program's position that the failure to advise the employer before or as soon as possible after the leave begins does not negate that entitlement. This approach is consistent with the Program's long-standing policy in the pregnancy and parental leave context, where the structure of the entitlement and notice provisions are similar to these. See Employment Standards Act, 2000 Part XIV, section 46(4) and section 48(4).

An issue has arisen as to whether an employer can penalize an employee for failing to give advance notice that they will be absent from work (as may be required under an employer policy), where the time off is a personal emergency leave under the ESA 2000. Sections 50(1) and (2) describe the employee's entitlement (that is, the type of emergency situation and with respect to which individuals). Section 50(3) requires the employee taking personal emergency leave to advise the employer that they are taking the leave, and s. 50(4) provides that "if the employee must begin the leave before advising the employer, the employee shall advise the employer of the leave as soon as possible after beginning it." It is clear from s. 50(4) that the ESA 2000 contemplates situations where the employee would be unable to advise the employer in advance of commencing the personal emergency leave. Part of the personal emergency leave entitlement under the ESA 2000 is the right to take the personal emergency leave even if advance notice cannot be given, with the proviso that the employee must advise the employer of the leave as soon as possible after beginning it. The failure to give notice in advance of taking leave, when it would have been possible for the employee to do so, can be the subject of disciplinary action by the employer without violating s. 74. However, the following points should be borne in mind:

The employee's failure to give advance notice would not be a lawful basis on which to deprive the employee of the right to take the leave if the qualifying conditions in ss. 50(1) and (2) have been met. An employer could not, for example, take the position that failure to give advance notice when it would have been possible for the employee to do so will result in the time taken off not being counted as a personal emergency leave day.
Any discipline for failing to provide notice in situations where such notice is required under s. 50(3) (i.e., where s. 50(4) does not apply) would have to be appropriately linked to the failure to give advance notice and must not, in effect penalize the employee for exercising the right to leave. The motive for any discipline that the employer does impose must clearly be the employee's failure to give advance notice and not the taking of the leave itself.

In addition, an employer would be able to impose discipline if an employee fails to provide any notice of the personal emergency leave (before or after the leave), or if the employee provides notice of the leave so late that one wouldn’t reasonably be able to say that it falls within s. 50(4). However, the employer's disciplinary action would have to be appropriate, and in no way a penalty or reprisal for the employee having taken the leave, but only for the failure to give notice. In this regard see Ryding-Regency Meat Packers Ltd. v. U.F.C.W., Local 1000A. In that case, the arbitrator concluded that s. 50(1) establishes an entitlement to leave where a person described in s. 50(2) is ill. The fact that the employee's grandmother was ill was not disputed. Because s. 50(1) and (2) are in no way linked to the notice requirements, the employee could be disciplined for not giving notice that he was taking or had taken leave but did not lose his entitlement to the emergency leave.

Limit – section 50(5)

Subsection 50(5) was repealed effective January 1, 2019 as a result of the Making Ontario Open for Business Act, 2018. The discussion of this provision is being maintained in this publication since employees may still have a complaint relating to a situation that arose when the provision was in force. The text appears in red to highlight that the provision has been repealed.

This section provides that an employee is entitled to take up to ten days of personal emergency leave every calendar year, and that two of the days of leave are to be paid. This provision also references section 50(6) which limits the entitlement to paid leave to employees who have been employed for at least one week.

The ESA 2000 does not place any restrictions regarding whether the ten days have to be taken consecutively or individually. Employees can take personal emergency leave in part days (although see s. 50(7), which allows employers to deem one day's leave to be taken when an employee takes part of a day off work for personal emergency leave), entire days, or in periods of more than one day.

The question arises as to whether the 10-day entitlement should be prorated for employees who are part-time, or who started their employment partway through a calendar year. There is nothing in the legislation to suggest that employees who are eligible for personal emergency leave should be entitled to less than ten days a calendar year in any of these situations. Accordingly, it is Program policy that there should be no pro-rating of the 10-day entitlement. The ESA 2000 does not provide for employees to be able to carry unused days of personal emergency leave from one calendar year over into the next calendar year.

See "Greater Right or Benefit" at Part III section 5 for a discussion of the relationship between the right to ten days' leave under this Part and rights to leaves under contracts and collective agreements. See subsection (1) above for a discussion on "Designating Absences as Personal Emergency Leave."

Special rules relating to personal emergency leave pay

Automobile manufacturing/marshalling: per section 4 of Ontario Regulation 502/06, employees who work in the defined industry of automobile and automobile parts manufacturing, automobile marshalling and automobile parts warehousing have a different entitlement to personal emergency leave. These employees are entitled to seven days of personal emergency leave for an illness, injury or medical emergency related either to the employee or one of the individuals listed in subsection 4(4) of Ontario Regulation 502/06, or an urgent matter for any of the specified individuals. In addition, these defined industry employees are entitled to up to three days of leave because of the death of any of the specified individuals in section 4(4) of Ontario Regulation 502/06 each time there is such a death. Ontario Regulation 502/06 also establishes an exception to the requirement that the first two days of personal emergency leave are to be paid if certain criteria are met. See Ontario Regulation 502/06, section 4 for more details.

Construction employees: per section 3.0.1 of Ontario Regulation 285/01, a “construction employee who works in the construction industry” is not entitled to personal emergency leave pay if the employee receives 0.8% of their hourly rate or wages for “personal emergency pay”. However, the employee will remain entitled to 10 days of personal emergency leave per calendar year. See Ontario Regulation 285/01, section 3.0.1 for more details.

When this section originally came into force on September 4, 2001, it provided that the entitlement was to 10 days' leave each year. This section was amended by the Employment Standards Amendment Act (Hours of Work and Other Matters), 2004, SO 2004, c 21 (which came into force on March 1, 2005) to provide that the entitlement is to 10 days' leave each calendar year. The section was further amended by the Fair Workplaces, Better Jobs Act, 2017 SO 2017, c22 on January 1, 2018 to provide for two days of paid leave.

Same, entitlement to paid leave – section 50(6)

Subsection 50(6) was repealed effective January 1, 2019 as a result of the Making Ontario Open for Business Act, 2018. The discussion of this provision is being maintained in this publication since employees may still have a complaint relating to a situation that arose when the provision was in force. The text appears in red to highlight that the provision has been repealed.

This section limits the entitlement to paid leave to employees who have been employed by the employer for one week or more. An employee who takes personal emergency leave within the first week of employment will not be entitled to be paid for it, but will retain the entitlement to two paid days if further leave is taken later in the calendar year. The provision also clarifies that any unpaid days of leave that have been taken by an employee before they were employed for one week will be counted against the total entitlement of 10 days per calendar year. This section must be read in conjunction with s. 50(8), which requires that the first two days of leave within the calendar year must be paid; employees who have been employed for less than one week are specifically excluded from that rule until they have been employed for one week or longer.

For example, an employee takes two days of personal emergency leave in the first week of employment, and then two further days of leave in the sixth week of employment: the employee will be entitled to an unpaid, job-protected leave for the first two days, and will be entitled to paid, job-protected leave for days three and four (even though they are not the first two days of leave taken within the year).

Note that if the employer has a policy or the employee’s contract of employment that provides, for example, three days of paid sick leave per year regardless of the length of employment and the employee was absent during the first week of employment for a reason that triggered both the policy/contract’s sick leave provisions as well as personal emergency leave, the employee will be considered to have received their paid PEL entitlements. In other words, if an employee in the scenario above uses all three days of paid sick leave during the first week of employment for a personal illness, the employer is not prohibited by anything in the ESA 2000 from counting the paid sick days against the employee’s entitlement per the employment contract, as well as three personal emergency leave days and two days of personal emergency leave pay from the employee’s statutory entitlement. However, note that the amount of pay the employee received under the contract must at least equal the employee’s entitlement to personal emergency leave pay under the ESA 2000.

Leave deemed to be taken in entire days – section 50(7)

Subsection 50(7) was repealed effective January 1, 2019 as a result of the Making Ontario Open for Business Act, 2018. The discussion of this provision is being maintained in this publication since employees may still have a complaint relating to a situation that arose when the provision was in force. The text appears in red to highlight that the provision has been repealed.

Employees frequently do not need an entire work day to attend to the event that gave rise to the personal emergency leave, and will only take part of a day off as personal emergency leave. Section 50(6) allows an employer in this situation to count the part-day off work as an entire day's leave for the purpose of the 10-day leave entitlement. This is the only purpose for which the employer can deem the part day off work as an entire day's leave. It cannot deem the employee not to have worked at all on the day. The employee is entitled to be paid for the time that was actually worked and personal emergency leave pay with respect to the time that was not worked (if the partial absence was on a day for which the employee was entitled to personal emergency leave pay). As well, the hours that were worked will be counted for the purposes of, among other things, determining whether the relevant overtime threshold has been reached, whether the limits on, for example, the daily and weekly hours of work have been reached, and whether the daily, weekly/bi-weekly and in-between shifts rest requirements have been met.

For example, an employee goes home early from work because of the stomach flu (e.g., a four-hour day rather than his usual eight hours) and takes PEL In that case, the employer may attribute a full personal emergency leave day to the partial day's absence.

Just because an employer may attribute an entire day's leave to a part day of absence does not mean that the employee then has the right to take the entire day off if the emergency did not last the entire day. For example, an employee's shift is from 9 a.m. to 5 p.m. He has to meet with his son's school principal on an urgent matter from 10 a.m. to 11 a.m. His employer is entitled to count the absence as an entire day's personal emergency leave, but the employee must nevertheless return to work after the meeting is over. Employees have the right to be away from work under the personal emergency leave provisions of the ESA 2000 only for as long as the emergency lasts. After the emergency is over, the employee's normal obligations to attend at work are resumed.

Note that this provision allows the employer to attribute one day's leave to a part day of absence. It does not require the employer to do so.

The answer will depend on the facts. In particular, why did the employer treat the employees differently? Where an employer deems a full day's absence for some employees, but not for others, it is a question of fact as to whether the employer would be in violation of the ESA 2000. For instance, if the employer counts a three-hour personal emergency leave as a full day's leave for employee A but not for employee B, who also takes a three-hour personal emergency leave because the employer considers employee B to be a better worker than employee A, although this might be unfair as between employee A and B, it would not be a violation of the ESA 2000, as it would not be reprisal for exercising a right under the ESA 2000. If, on the other hand, the motivation for the differential treatment was that Employee A frequently took personal emergency leave of only a few hours, and the employer assigned a full day's absence to these short leaves as a way to ensure employee A used up all of their statutory entitlement as soon as possible because the employer found it inconvenient for the employee to be away for many short periods of time, that would be an unlawful reprisal.

Paid days first – section 50(8)

Subsection 50(8) was repealed effective January 1, 2019 as a result of the Making Ontario Open for Business Act, 2018. The discussion of this provision is being maintained in this publication since employees may still have a complaint relating to a situation that arose when the provision was in force. The text appears in red to highlight that the provision has been repealed.

This section requires that the employee be paid for the first two days of leave. The employer does not have the discretion to pay the employee, for example, for the ninth and tenth days of leave (or any other days) instead of the first two days (unless s. 50(6) applies).

The entitlement would exist regardless of when the paid leave days are taken, for example, if an employee took the first two days of leave on the last two days of a calendar year, the employee could also take the first two days of the following calendar year as paid leave providing a qualifying event had occurred involving either the employee or a person described in s. 50(2). In this case, the employee could be entitled to up to four days of paid leave, potentially within the same week.

Personal emergency leave pay – section 50(9)

Subsection 50(9) was repealed effective January 1, 2019 as a result of the Making Ontario Open for Business Act, 2018. The discussion of this provision is being maintained in this publication since employees may still have a complaint relating to a situation that arose when the provision was in force. The text appears in red to highlight that the provision has been repealed.

This section sets out the manner of calculating the amount of personal emergency leave pay.

Note, subject to subsection (10) and (11), the calculation entitles employees only to wages they would have earned if they were at work and not on personal emergency leave: this is read in conjunction with s. 50(7), and will allow an employer to deem a partial day personal emergency leave absence as a complete day of leave, but only require the employer to pay personal emergency leave pay representing the amount of time at work missed as well as any wages the employee earns while actively at work on that day. Per s. 50(10), overtime pay and shift premium amounts are not to be included in personal emergency leave pay even if the employee “would have earned” these if the employee worked. Per section 50(11), if a paid day of personal emergency leave falls on a public holiday, the employee is not entitled to premium pay for any leave taken. Personal emergency leave pay for a day can be any amount from a single hour’s pay or less to an entire day of wages, depending on how much leave is taken.

At this time, no other manner of calculating personal emergency leave pay has been prescribed.

Calculating personal emergency leave pay

In order to determine how much personal emergency leave pay an employee is entitled to, two things need to be established:

How much personal emergency leave was taken, or the number of hours in a “work day” minus the number of hours worked, if any, and
How personal emergency leave pay will be calculated, either as
1. What an employee’s wages would have been for the work day or
2. For employees paid by “performance-related wages”, either an hourly rate if there is one, or the applicable minimum wage if not.

I. Length of the “work day”

If the employee:

works a regular work day, with set hours, this is the length of the day for the purpose of calculating personal emergency leave pay.
Is scheduled to work a particular number of hours on the day on which personal emergency leave is taken, the length of the work day will be what was scheduled, even if the employee regularly works a set number of hours that is different from the scheduled shift.

II. Amount of personal emergency leave taken

The amount of personal emergency leave taken on a single day is calculated by deducting the number of hours actually worked, if any, from the total number of hours in the work day. For example, if it is determined that the employee was scheduled to work nine hours on the day, and they took five hours to deal with a personal illness, they would be entitled to four hours of wages and five hours of personal emergency leave pay. If the same employee missed the entire day, they would be entitled to nine hours of personal emergency leave pay.

The situation may arise when an employee may be required to report to work at a particular time, but does not have a shift or work period of a specified length. In that case, when assessing the amount of wages an employee would have earned had they not taken PEL in order to determine the amount of PEL pay owing, the employer must make a reasonable estimate of how long the employee would have worked on that day. For example, it could be reasonable for an employer to take an average of the number of hours worked by all the employees in the same position as the employee who took leave on the day, or if another employee was called in to replace the employee on the day, it could be reasonable to refer to the length of that employee’s shift.

When an employment standards officer is investigating a claim from an employee who believes they received less personal emergency leave pay than the ESA 2000 requires (perhaps because the employer took the position that the business was not busy on that particular day and the employer intended to send the employee home early) the officer makes a determination on whether the amount paid by the employer was reasonable. Evidence may include direct evidence from other employees, receipts, point of sale records, customer or production logs, or the staff schedule from the day in question. If the employer has a staff rotation policy and employees are sent home early in a particular order when the business is not busy, was the employee the next person on the list?

III. “Wages the employee would have earned that day had they not taken the leave”

For employees who are not paid by performance-related wages:

A) Hourly wage (non-salaried employees)

If the employee is paid by an hourly wage, the amount of personal emergency leave pay is the number of hours of personal emergency leave x the hourly rate.

Example 1: Employee with a single rate of pay

Employee’s wage rate is $17.25 per hour.
Employee normally works 8.5 hours in a day. The employee left work to take personal emergency leave after working 1.5 hours

Entitlement:

Employee normally works 8.5 hours per day, but worked 1.5 hours and took personal emergency leave for the rest of the day = 7 hours of personal emergency leave
Personal Emergency Leave (“PEL”) Pay: 7 hours x $17.25 = $120.75
Note that the employee is also entitled to wages for hours actually worked on the same day = 1.5 hours x $17.25)

Example 2: Employee with more than one rate of pay

Employee is paid $16.00/hour for Job “A” and $17.50/hour for Job “B”
Employee is scheduled to work 10 hours: first five hours on Job “A” and second five hours on Job “B”

Entitlement:

The employee worked for the first three hours doing Job A, and took the rest of the day as personal emergency leave: 10 hours – 3 hours = 7
Of the 7 hours of personal emergency leave, 2 were Job A and 5 were Job B
PEL Pay: (2 hours × $16.00 = $32.00) + (5 hours × $17.50 = $87.50) = $119.50
Note that the employee is also entitled to wages for hours actually worked: (3 hours x $16.00 = $48.00)

B) Salaried employees

If the employee is paid by salary and has a regular number of days within a pay period and regular hours, the amount of personal emergency leave pay is:

If the employee took a full day or shift as personal emergency leave, the employee’s daily rate (salary ÷ number of days in a pay period)
If the employee took part of a day or shift as personal emergency leave, the employee’s hourly rate (salary ÷ number of hours in a pay period) x number of hours of personal emergency leave

This is, in effect, salary continuance. If an employer pays an employee with a fixed salary the normal amount of pay for a week with a day of full or partial personal emergency leave in it, the personal emergency leave pay provisions of the ESA 2000 will be satisfied.

Examples: salaried employees with regular number of days and hours within pay period

Example 1: An employee is paid $1500.00 per bi-weekly pay period and works a five-day week. 1 day of personal emergency leave is taken. Personal emergency leave pay = $1500.00 ÷ 10 = $150.00.

Example 2: An employee is paid $1500.00 per bi-weekly pay period and works a 40 hour week. She takes four hours of personal emergency leave. Hourly rate: $1500.00 ÷ 80 = $18.75/hour. Personal emergency leave pay: $18.75 × 4 = $75.00. Note that the employee is also entitled to wages earned for the part of the day that she worked.

Impact of “top-ups” on the calculation of personal emergency leave pay:

A situation may arise where the employee receives a “top-up” or subsidy from a third party in addition to an hourly rate of pay or salary. For example, an employee who works in a daycare centre may be paid $16.00/hour plus $2.00/hour as part of a municipal or provincial government initiative to raise wages for workers in the sector. Depending on how the subsidy is structured, it may or may not be considered “wages the employee would have earned” for the purposes of personal emergency leave pay. If the employee is paid the subsidy directly by an entity other than the employer, then the subsidy may not be considered “wages that the employee would have earned” because they are not wages being paid by the employer. If, however, the subsidy and the hourly rate are a term of the contract of employment with the employer (oral or written, express or implied), then the subsidy amount must be included in the calculation of personal emergency leave pay.

Impact of partial payments by benefit plan providers on personal emergency leave pay:

Another situation that may arise where the employer has a benefit plan in place that pays benefits to employees when events occur that trigger both an entitlement to benefits under the plan as well as personal emergency leave pay under the ESA 2000. It is Program policy that the employer may take benefit plan payments into account when fulfilling its obligation to provide personal emergency leave pay. What is key is that the employee receives pay for any paid days of leave in accordance with s. 50.

For example, a benefit plan pays a benefit that equals 75% of an employee’s wages when the employee takes a day off for personal illness. In order to comply with s. 50(9), the employer would be required to ensure that the employee received their full entitlement to personal emergency leave pay: if the employee missed an entire day of work to take the leave, the employer would be required to pay the additional 25% of the wages that the employee would have earned had they not taken the leave.

IV. “Performance-related wages”

The amount of personal emergency leave pay for an employee paid fully or partly by a system of wage calculation related to performance is the greater of the employee’s “hourly rate, if any” and the minimum wage that would have applied to the employee. “Performance-related wages” can include commission only, commission plus an hourly wage, piece work, or compensation as a flat-rate mechanic. An “hourly rate” refers to an hourly rate set by an employment contract.

Example 1: Employee earns an hourly rate + commission

Employee earns $16.00/hour plus 2% commission on sales,
Employee takes 6.5 hours of personal emergency leave
PEL Pay: $16.00 x 6.5 = $104.00
Note that the employee is also entitled to his/her hourly wage for any hours worked + commission earned while working that day, if any

Example 2: Employee paid entirely by commission

Employee earns 10% commission on all sales
Employee is scheduled to work eight hours, works five hours and makes sales of $500.00 and then takes three hours of personal emergency leave
PEL Pay: $Applicable minimum wage rate x 3
Note that the employee is also entitled to the 10% commission on the $500.00 sales that the employee made that day

Example 3: Employee is a homeworker paid by piece work

Employee earns $3.50 per phone call answered
Employee is scheduled to work 8.5 hours, works two hours, answers nine phone calls, and takes 6.5 hours of personal emergency leave
PEL Pay: $Applicable minimum wage x 6.5
Note that the employee is also entitled to $3.50 x 9 for actual work performed on the day

Example 4: Employee is a Flat Rate Mechanic

Employee is scheduled to work nine hours
Employee is paid a flat “book” rate of $16.00/hour for tune ups (calculated to take two hours to complete). Employee completes two tune ups in three hours and takes the rest of the shift as personal emergency leave.
PEL Pay: $Applicable minimum wage x 6
Note that the employee is also entitled to $16.00 x 4 = $64.00, wages earned on the day)

Personal emergency leave where higher rate of wages – section 50(10)

Subsection 50(10) was repealed effective January 1, 2019 as a result of the Making Ontario Open for Business Act, 2018. The discussion of this provision is being maintained in this publication since employees may still have a complaint relating to a situation that arose when the provision was in force. The text appears in red to highlight that the provision has been repealed.

This section excludes overtime pay or a shift premium (for example, an extra amount paid for working evenings or weekends) from inclusion when calculating personal emergency leave pay. The employee would be entitled to be paid for hours of personal emergency leave using their regular rate of pay, and not for example 1.5 times their regular rate per the overtime provisions of the Employment Standards Act, 2000.

Example: Employee scheduled to work overtime hours on a day when personal emergency leave was taken

Employee is paid $16.00/hour, has already worked 40 hours in a work week and is scheduled to work an additional shift of eight hours on a Saturday.
Employee does not work any of the scheduled shift and takes personal emergency leave
Employee would have earned wages for eight hours of work had they not taken the leave (4 of which would have exceeded the overtime threshold of 44 in a week)
Personal emergency leave Pay: 8 hours × $16.00/hour = $128.00

Similarly, if an employee is scheduled to work hours that would normally attract a shift premium, if the employee misses all or some of the shift to take personal emergency leave, then personal emergency leave pay will be calculated on the employee’s “base” rate and would not include the shift premium.

Example: Employee entitled to shift premium pay on a day where personal emergency leave was taken

Employee is paid $15.50/hour, plus an additional $2.50/hour for night shifts.
Employee is scheduled to work a midnight to 8:00am shift, calls in sick and does not work any hours.
Employee would have earned wages for 8 hours of work had they not taken the leave
Personal emergency leave Pay: 8 hours × $15.50 = $124.00

Personal emergency leave on public holiday – section 50(11)

Subsection 50(11) was repealed effective January 1, 2019 as a result of the Making Ontario Open for Business Act, 2018. The discussion of this provision is being maintained in this publication since employees may still have a complaint relating to a situation that arose when the provision was in force. The text appears in red to highlight that the provision has been repealed.

Under Part X (Public Holidays) of the ESA 2000 employees who agree to, or are required to work on a public holiday may be entitled to receive premium pay of at least one and one half times their regular rate for hours worked on that day (see the Public Holidays Chapter for details on entitlements under Part X). The effect of this subsection is that —-despite the entitlement in s. 50(9) to be paid “the wages the employee would have earned had they not taken the leave” — the employee is not entitled to any premium pay that they would have earned by working on the public holiday had the leave not been taken.

Note that in certain situations, per Part X (Public Holidays) of the ESA 2000), the onus is on the employee to prove that they had “reasonable cause” for not working all or part of a scheduled shift either on a public holiday, or the “first and last” shifts before or after a public holiday. Also note that it is Program policy that if an employee takes personal emergency leave, this will constitute reasonable cause for the purposes of Part X. This is subject to s. 50(13) which prohibits an employer from requiring that the employee provide a certificate from a qualified health practitioner as evidence of an entitlement to PEL. Therefore an employer can only require an employee to provide other evidence “reasonable in the circumstances” per s. 50(12).

Example:

An employee was scheduled to work on a public for nine hours and was going to be paid public holiday pay plus premium pay for the nine hours. The employee worked for three hours and took six hours as personal emergency leave. The employee earns $15.00/hour.

Entitlement: Premium pay for hours worked on the public holiday: $15.00 x 1.5 x 3 = $67.50
Personal emergency leave pay: public holiday pay calculated in accordance with s. 24
Note that the employee is not entitled to premium pay for the six hours taken as PEL

For more information on Public Holiday Entitlements, please see Part X of the Employment Standards Act, 2000.

Evidence – section 50(12), Same – section 50(13)

Subsections 50(12) and (13) were repealed effective January 1, 2019 as a result of the Making Ontario Open for Business Act, 2018. The discussion of these provisions is being maintained in this publication since employees may still have a complaint relating to a situation that arose when the provisions were in force. The text appears in red to highlight that the provisions have been repealed.

S. 50(12) gives an employer some ability to require an employee to provide proof that they are or were entitled to take personal emergency leave, subject to the limitation imposed by subsection (13). The employer can require an employee to provide evidence that is reasonable in the circumstances that they are or were entitled to take the leave.

Evidence of entitlement to personal emergency leave may take many forms. For example, it could be a death certificate, or a note from a daycare provider, school or other care facility. Receipts could also constitute proof of the emergency, e.g., an invoice from a plumber who was called in to deal with a flooded basement.

However, an employee cannot be required to provide a “certificate” (or medical note) from a qualified health practitioner — see s. 50(0.1) for more information on the definition of a qualified health practitioner. Note that s. 50(13) states that an employer “shall not require” a medical certificate from a qualified health practitioner: this prohibition applies to both a single request in relation to a specific absence, or the inclusion of such a requirement in an absenteeism management policy established by an employer. An employee may provide a certificate or medical certificate, but any evidence that an employee was threatened with discipline for failing to provide a note “voluntarily” would contribute to a finding that a reprisal under s. 74 had occurred.

It may, however, be reasonable in the circumstances for an employee taking personal emergency leave relating to their own illness, injury or medical emergency to be required to provide something other than a certificate or medical note issued by a qualified health practitioner.

What will be reasonable in the circumstances will depend on all of the circumstances in any given situation. In FAG Bearings Ltd. v Francis, 2005 CanLII 35873 (ON LRB) the employer had a disciplinary policy that provided for a four-step progression for any infraction of a company rule or policy. Under the disciplinary policy, an employee's employment would be terminated if there was a fourth disciplinary incident in a rolling twelve-month period. In this case, the third disciplinary incident was a response to the claimant failing to provide a doctor's note when he left work early because of back pain (note that, at the time, the ESA 2000 permitted an employer to require “evidence reasonable in the circumstances” of entitlement to the leave, which could include medical evidence). The employer argued that the discipline was a consequence of the employee's failure to provide a doctor's note within a reasonable period of time following the absence, and not because he had exercised a right to emergency leave under the ESA 2000. The employee argued that he should have been provided with more time to provide a note. The Ontario Labour Relations Board concluded that the requirement to provide evidence reasonable in the circumstances contemplates that both the evidence required and the timelines for providing it be reasonable in the circumstances. The Board noted that the right to leave would be defeated if an employee who is legitimately entitled to it could be disciplined for failing to comply with an unreasonable time frame set by their employer. Conversely, the employer's right to verify entitlement to a leave would also be defeated if it could not require the employee to provide the evidence within a reasonable period of time. In this case, the Board found that the time to provide the evidence had been reasonable and the discipline was imposed solely as a consequence of the employee's failure to provide evidence as required under the ESA 2000. On that basis, the Board found the employer had not violated s. 74 of the ESA 2000, since the discipline was not related to the exercise of the employee's right to leave under s. 50(1).

Another helpful decision in this regard is Re Tilbury Assembly Ltd. and United Auto Workers, Local 251. This decision also pre-dates the coming into force of subsection (13) and the limit placed on medical evidence. There, an employee with an absenteeism problem had left her shift early complaining of a severe headache. The employer had a policy that this employee was required to provide a physician's note in all cases of absence due to personal illness because of her history of absenteeism. In this instance, the employee did not obtain such a note, but instead bought some extra-strength pain relievers and took them and went to bed in a dark room, which was how she customarily dealt with this type of headache, which she experienced two or three times a year. Although the employee provided a note and receipt from the pharmacist from whom she purchased the pain relievers, the employer disciplined her for the failure to produce a physician's note. The employee grieved. The arbitrator held that the ESA 2000 gives an employer a right to require an employee to produce evidence, but only such evidence as was reasonable in the circumstances. While the employee's record of absences was one circumstance to be taken into account in determining what was reasonable, it was outweighed by the fact that the employee did have a note and receipt from a pharmacist, by the fact that her experience with the type of headache she had indicated that taking the pain relievers and going to bed in a dark room would provide effective treatment and by the fact that employee would likely face a considerable wait in a hospital emergency facility in order to see a doctor for her headache. The arbitrator found that the employer's requirement of a note from a physician was not reasonable in these circumstances and reversed the discipline.

1. Evidence reasonable in the circumstances

Evidence that is reasonable in the circumstances will be fact-specific. The factors and principles that may be relevant when assessing “reasonableness” are:

The duration of the leave. For example, it may not be reasonable, depending on all of the circumstances, for an employer to require an employee who was away from work for only one day to provide evidence.
Whether there is a pattern of absences or a record of absenteeism. For example, if an employee claims to need repeated dental work and takes a personal emergency leave every Friday afternoon in the summer, it may be reasonable for the employer to require some proof of the procedures even though the leave is of short duration.
Whether any evidence is available.
Where evidence is available, but only with some difficulty, whether it is reasonable to expect the employee to obtain the evidence — see the Re Tilbury Assembly Ltd. and United Auto Workers, Local 251, discussed above, although note that this decision pre-dates subsection (11). Another example might be where an employee took a leave for medical reasons after seeing a doctor or other person who falls into the definition of “qualified health practitioner”; it likely would not be reasonable for the employer to expect the employee to see a non-“qualified health practitioner” in addition for the sole purpose of getting a note.
The cost of the evidence. For example, it may not be reasonable, depending on all of the circumstances, for an employer to require an employee who earns minimum wage to obtain a copy of a police report for a motor vehicle accident if the police station charges $25 for it.
The employee had earlier asked for the time off for non-emergency leave reasons for the time at which the absence occurred but was denied.
The employee had announced plans in advance to miss work.

Evidence relating to court proceedings

In addition, the Youth Criminal Justice Act, SC 2002, c 1("YCJA") prohibits the disclosure of any information that may identify a young person who has committed or is alleged to have committed an offence, a young person who is a victim of the offence, or a young person who is called as a witness in any proceeding in connection with the alleged offence. Employees who take a personal emergency leave because a young person specified in s. 50(2) is involved in a YCJA matter are not obliged to divulge to the employer (or officer) any information regarding the identity of the young person (for example, the name or their relationship to the employee). Instead, it is Program policy that it would be reasonable in the circumstances that the employee state that a relative was involved in a court proceeding.

Evidence relating to reasonable cause for PEL before, after, or on a public holiday

Note that, in certain situations per Part X (Public Holidays) of the Employment Standards Act, 2000, the onus is on the employee to prove that they had reasonable cause for not working all or part of a scheduled shift either on a public holiday, or the “first and last” shifts before or after a public holiday. Also note that it is Program policy that if an employee takes personal emergency leave, this will constitute reasonable cause for the purposes of Part X. This is subject to s. 50(13) which prohibits an employer from requiring that the employee provide a certificate from a qualified health practitioner as evidence of an entitlement to personal emergency leave (PEL). Therefore, an employer can only require an employee to provide other evidence reasonable in the circumstances per section 50 (12).

Evidence relating to “return to work” requirements

In some circumstances, an employee may be required by an employer to provide evidence that they are fit to return to work after an illness or injury. While s. 50(13) prohibits an employer from requiring an employee to provide a certificate from a qualified health practitioner, this is in relation to determining the employee’s eligibility for s.50 entitlements only. If an employer requires the employee to provide a medical note or certificate only for the purpose of confirming that the employee is capable of performing regular or modified duties before the employee returns to work, this would not be a violation of s. 50(13) of the ESA 2000.

Evidence relating to benefits under a contract of employment that exceed ESA 2000 entitlements

If an employer provides paid “sick days” in excess of the requirement under the ESA 2000 for two days of personal emergency leave taken in the calendar year to be paid, whether or not the prohibition against requiring a certificate from a qualified health practitioner (a “medical note”) applies depends on whether the contract of employment offers a greater right or benefit under s. 5(2) of the ESA 2000.

If the “sick day” provisions contained in the employee’s contract of employment are a greater right or benefit after all of its features have been compared with the personal emergency leave provisions in the ESA 2000, then the terms of the employment contract will apply and the prohibition contained in ss. 50(13) will not apply to any of the absences. In that case, if the terms include a requirement for the employee to provide a medical note upon request, the employee will be required to do so in accordance with the contract of employment and the prohibition contained in s. 50(13) will not apply.

If the benefit offered by the contract of employment is not a greater right or benefit, then the provisions of the ESA 2000 will apply. Per s. 50(13) the employer cannot require the employee to provide a medical note for the purpose of proving the employee’s entitlement to PEL for any of the ten statutory personal emergency leave days — paid or unpaid — the employee is entitled to. If, however, a contract of employment provides for paid sick days over and above the two days of paid PEL an employee is entitled to under the ESA 2000, the employer is not prohibited from requiring a medical note as a condition for providing pay for those additional paid sick days. The employer may not require the note as evidence that the employee is entitled to take the time off as personal emergency leave.

Consider the example of a contract of employment that offers a benefit of six paid sick days per calendar year. Assume that the contract does not provide a greater right or benefit and that s. 50 therefore applies. If an employee takes their first two days of personal emergency leave in the calendar year for personal illness, the employer would be prohibited from requiring a medical note from the employee and the employee would be entitled to two paid days of personal emergency leave pay (provided they have worked for the employer for one week or longer). If the same employee takes the four more days of personal emergency leave in the same calendar year for personal illness, although the employer is prohibited from requiring a medical note to support the employee’s eligibility for the leave, the employer is not prohibited from requiring a medical note to support the employee’s contractual entitlement to the pay for the remaining four sick days. Because the pay for the last four sick days are over and above the employee’s entitlement to personal emergency leave pay under the ESA 2000, the prohibition in s. 50(13) does not apply to that pay. However, the prohibition in s. 50(13) will continue to apply to the entitlement to take the leave of absence.

Another example is where an employer offers 12 days of “personal leave” or “sick leave” under the contract of employment within a calendar year. Assume that the contract does not provide a greater right or benefit and that s. 50 therefore applies. The prohibition applies only to the ten statutory personal emergency leave days the employee is entitled to. The prohibition in s. 50(13) would not apply to the 11th or 12th absences.

Section 50.0.1 – Family responsibility leave

Family responsibility leave – section 50.0.1(1)

Family members – section 50.0.1(3)

The family responsibility leave provisions were introduced into the Employment Standards Act, 2000 effective January 1, 2019 by the Making Ontario Open for Business Act, 2018.

Sections 50.0.1(1) and 50.0.1(3) set out the qualifying conditions an employee must meet in order to be entitled to an unpaid family responsibility leave. To qualify, the employee must have been employed by the employer for at least two consecutive weeks, the need for the leave must be because of one of the events specified in subsection (1) and the event must relate to one of the individuals specified in subsection (3).

Note that, pursuant to s. 3 of Ontario Regulation 285/01, certain employees who meet the qualifying criteria for a family responsibility leave will not be entitled to take it if taking it would constitute an act of professional misconduct or a dereliction of professional duty. Section 3 of Ontario Regulation 285/01 reads:

See section 3 of Ontario Regulation 285/01 for more information.

1. What triggers an entitlement to family responsibility leave

Sections 50.0.1(1) and 50.0.1(3) list the events, and the people to whom the events must relate, that entitle employees who have been employed for at least two consecutive weeks to take family responsibility leave. The list is exhaustive. If an event or the person to whom the event relates is not listed in ss. 50.0.1(1) and 50.0.1(3), the employee is not entitled to family responsibility leave. If the employee has not been employed for at least two consecutive weeks, the employee is not entitled to family responsibility leave.

Employees can take a family responsibility leave of absence because of the following events:

Illness,
Injury,
Medical emergency, or
Urgent matter.

The events described in the list above must relate to one of the following people:

The employee's spouse (which includes a same-sex spouse);
A parent, step-parent, foster parent, child, step-child, foster child, grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee's spouse (which includes a same-sex spouse);
The spouse (which includes a same sex spouse) of the employee's child;
The employee's brother or sister; and
Any relative of the employee not listed above who is dependent on the employee for care or assistance.

The terms parent and spouse are defined in section 45 of the Employment Standards Act 2000 – see Part XIV, section 45.

If the event or person to whom the event relates is not contained in the above list, the employee is not entitled to a family responsibility leave. For example, while an urgent matter in respect of a person specified in s. 50.0.1(3) entitles an employee to family responsibility leave, a personal urgent matter does not.

i. Illness, injury or medical emergency

In general, the meaning of these terms is self-evident.

One issue that arises with respect to leaves taken because of illness, injury or medical emergency is whether an employee is entitled to take family responsibility leave because their relative has a pre-planned or so-called elective surgery. Because the surgery is scheduled ahead of time, it is not a medical emergency. However, because, generally speaking, people undergo surgery for the treatment or prevention of a medical condition, it is Program policy that most surgeries, including those that are pre-planned or elective, that are performed to address or prevent manifestation of a medical condition (e.g., laser eye surgery to correct poor distance vision) are because of an illness or injury. Consequently, an employee is entitled to family responsibility leave if a specified relative of the employee undergoes pre-planned or elective surgery. This does not include medically unnecessary plastic surgeries that are performed for purely cosmetic reasons and that are not related to an underlying illness or injury; these types of surgeries are not because of an illness or injury.

Another issue that arises concerns doctor's appointments. An employee’s relative who has an appointment for an annual check-up would generally not trigger an entitlement to leave for the employee unless it has been scheduled in respect of an illness, injury or medical emergency. However, if the relative had regularly scheduled appointments for the treatment or management of a chronic medical condition such as Crohn's disease or diabetes, those appointments would trigger an entitlement for the employee because they are absences related to an illness.

In the case of a relative for whom an employee may take family responsibility leave, the employer’s right to request evidence that the employee is eligible to take the leave will be limited. See s. 50.0.1(7) for more details.

see Designating Absences as Family Responsibility Leave.

ii. Urgent Matter

One of the events that entitle an employee to family responsibility leave is an urgent matter that concerns any of the people listed in s. 50.0.1(3). Urgent matter is not defined in the Employment Standards Act 2000. It is Program policy that one of the traits of an urgent matter is that the event be unplanned or out of the employee's control, and raise the possibility of serious negative consequences, including emotional harm, if it is not responded to. For example, it is an urgent matter if:

An employee's nanny or babysitter calls in sick;
The basement of an elderly parent floods and the parent is unable to deal with the situation; or
An employee has an appointment to meet with their child's counselor to discuss behaviour problems at school. The appointment is during the employee's shift, and the appointment could not be rescheduled outside of the employee's working hours.

Some examples of situations that are not an urgent matter include:

An employee wishing to attend a brother's wedding; or
An employee wishing to attend a child's play.

While both of these events are out of the employee's control, the employee's inability to attend these events does not raise the possibility of serious negative consequences.

iii. Relative of the Employee Who is Dependent on the Employee for Care or Assistance

Section 50.0.1(1) entitles employees to a family responsibility leave if there is an illness, injury, medical emergency or urgent matter concerning a person specified in paragraphs 1 to 7 of subsection 50.0.1(3), including a relative of the employee who is dependent on the employee for care or assistance.

Relative

The Employment Standards Act, 2000 does not specify how close the familial relationship has to be in order to meet this criterion. The person must only be a relative. In the absence of a definition of relative, the term must be interpreted in accordance with its plain, ordinary grammatical sense and general acceptance.

Black's Law Dictionary, 10th ed., defines the term relative, as follows:

A person connected with another by blood or affinity; a person who is kin with another. Accordingly, it is Program policy that to be a relative of an employee, the individual should be related through blood or through marriage, adoption or common law relationships between people of the same or opposite sex who are not married. Conversely, it is Program policy that relative in s. 50(2), paragraph 7 will not include those individuals who are not connected either by blood or through marriage, adoption or a common law relationship, since including them would be extending the meaning of relative beyond the ordinary, commonly understood meaning.

With respect to common law relationships, the question arises as to how long the individuals have to live together in a conjugal relationship before it can be said that a spousal relationship exists, thus granting relative status to relatives of the employee's spouse. The answer is that there is no minimum amount of time that the individuals must be together in order to qualify as a common law spouse for the purpose of entitlement to personal emergency leave. Unlike the Family Law Act, RSO 1990, c F.3 which, for the purposes of support obligations, limits the definition of unmarried spouse to those people who have lived together continuously for three years or are in a relationship of some permanence if they are the birth or adoptive parents of a child, s. 45 of the ESA 2000 requires only that the individuals live together in a conjugal relationship outside marriage.

Accordingly, it is Program policy that the relationship of relative can be established through a common law relationship between people of the same or opposite sex once there is a conjugal relationship, regardless of how long it has been. (Note that the entitlement to family responsibility leave does not arise solely by virtue of the illness, injury, medical emergency or urgent matter of a relative. If that relative is not in a category specified in paragraphs 1 through 6, that relative must be dependent on the employee for care or assistance before there is an entitlement to family responsibility leave. See the discussion below).

Dependent

An employee is entitled to take family responsibility leave with respect to the illness, injury, medical emergency or urgent matter of an individual not in a category specified in paragraphs 1 through 6, only where that individual is a relative who is dependent on the employee for care or assistance. The ESA 2000 does not specify how dependent a relative has to be on the employee for this provision to apply. It only requires that there be a dependence for care or assistance. As individuals can be dependent on one another for care or assistance without being entirely dependent on that person, it is Program policy that this provision will apply to any relative who is reliant on the employee to some degree for care or assistance in meeting their basic living needs. The relative does not have to be completely reliant on the employee for all of their needs for this provision to apply.

There is no requirement that the relative be living with the employee for this provision to apply.

The type of event that entitles an employee to a family responsibility leave does not have to relate to the particular type of dependence the relative has on the employee in order to meet this criteria. For example, an employee's great-uncle depends on the employee to purchase his prescriptions and ensure he takes his medication. The employee wants to take family responsibility leave because her great-uncle's house is broken into and he needs assistance. The employee will be entitled to family responsibility leave even though the matter that is being responded to (a break-in) is unrelated to the type of dependence (ensuring that medication is taken).

Same, limit – section 50.0.1(2)

This section provides that where an employee qualifies for a leave under this section, he or she entitled to take up to three days of family responsibility leave every calendar year. The entitlement is to a total of three days of family responsibility leave per calendar year, not three days per relative.

The ESA 2000 does not place any restrictions with respect to whether the three days have to be taken consecutively or individually. Employees can take family responsibility leave in part days (although see s. 50.0.1(6), which allows employers to deem one day's leave to be taken when an employee takes part of a day off work for family responsibility leave), entire days, or in periods of more than one day.

The question arises as to whether the three-day entitlement should be prorated for employees who are part-time, or who started their employment partway through a calendar year but have been employed for at least two consecutive weeks. There is nothing in the legislation to suggest that employees who are eligible for family responsibility leave should be entitled to less than three days per calendar year in any of these situations. Accordingly, it is Program policy that pro-rating of the three day entitlement for part-time employees or employees who were hired partway through a calendar year is not permitted.

The ESA 2000 does not provide for the carryover of unused days of family responsibility leave from one calendar year over into the next calendar year. In other words, employees do not have a statutory right to “bank” unused family responsibility leave days year over year.

It is Program policy that an employee who quits or is terminated and who is subsequently re-hired by the same employer during the same calendar year is entitled to a new three-day entitlement after two consecutive weeks of employment upon their re-hire. This is the case even if the employee took some family responsibility leave during their first term of employment in that calendar year.

See Greater Right or Benefit at Part III, s. 5(2) for a discussion of the application of the greater right or benefit provision to family responsibility leave. See also the discussion at ss. 50.0.1(8) — (10) for information regarding the interplay between contractual leave entitlements and statutory entitlements to family responsibility leave where the contractual leave does not amount to a greater right or benefit.

Advising Employer – subsection 50.0.1(4) & (5)

1. Advising Employer

Section 50.0.1(4) requires employees to tell their employers ahead of time that they will be taking family responsibility leave. In circumstances where that cannot be done, the employee is required, pursuant to s. 50.0.1(5), to inform the employer as soon as possible after beginning the leave.

The ESA 2000 does not require the employee to advise the employer of the family responsibility leave in writing. Oral notice is sufficient.

The ESA 2000 does not specify any particular method by which the employer is to be advised that the employee will be taking family responsibility leave. Consequently, an employee would be complying with this section whether they, for example, advised the employer by phone, left a note on the manager's desk or had a colleague take a message to the employer on their behalf.

Employees do not lose their right to family responsibility leave if they fail to comply with ss. 50.0.1(4) or (5). An employee's entitlement to family responsibility leave arises by virtue of one of a number of triggering events arising involving a particular family member, and it is the Program's position that the failure to advise the employer before or as soon as possible after the leave begins does not negate that entitlement. This approach is consistent with the Program's long-standing policy in the pregnancy and parental leave context, where the structure of the entitlement and notice provisions are similar to these. See ESA 2000 Part XIV, s. 46(4) and s. 48(4).

An issue has arisen as to whether an employer can penalize an employee for failing to give advance notice that they will be absent from work (as may be required under an employer policy), where the time off is a family responsibility leave under the ESA 2000. Sections 50.0.1(1) and (3) describe the employee's entitlement (i.e., the triggering event and with respect to which individuals). Section 50.0.1(4) requires the employee taking family responsibility leave to advise the employer that they are taking the leave, and s. 50.0.1(5) provides that if the employee must begin the leave before advising the employer, the employee shall advise the employer of the leave as soon as possible after beginning it. It is clear from s. 50.0.1(5) that the ESA 2000 contemplates situations where the employee would be unable to advise the employer in advance of commencing the family responsibility leave. Part of the family responsibility leave entitlement under the ESA 2000 is the right to take the family responsibility leave even if advance notice cannot be given, with the proviso that the employee must advise the employer of the leave as soon as possible after beginning it.

The failure to give notice in advance of taking leave, when it would have been possible for the employee to do so, can be the subject of disciplinary action by the employer without violating s. 74 (the anti-reprisal provision). However, the following points should be considered:

The employee's failure to give advance notice would not be a lawful basis on which to deprive the employee of the right to take the leave if the qualifying conditions in ss. 50.0.1(1) and (3) have been met. An employer could not, for example, take the position that failure to give advance notice when it would have been possible for the employee to do so will result in the time taken off not being counted as a family responsibility leave day.
Any discipline for failing to provide notice in situations where such notice is required under s. 50.0.1(4) (i.e., where s. 50.0.1(5) does not apply) would have to be appropriately linked to the failure to give advance notice and must not, in effect penalize the employee for exercising the right to leave. The motive for any discipline that the employer does impose must clearly be the employee's failure to give advance notice and not the taking of the leave itself.

In addition, an employer would be able to impose discipline if an employee fails to provide any notice of the family responsibility leave, or if the employee provides notice of the leave so late that one wouldn’t reasonably be able to say that it falls within s. 50.0.1(5). Again, however, the employer's disciplinary action would have to be appropriate, and in no way a penalty or reprisal for the employee having taken the leave, but only for the failure to give notice. In this regard see Ryding-Regency Meat Packers Ltd. v. U.F.C.W., Local 1000A. In that case, the arbitrator concluded that in relation to the former personal emergency leave, the ESA established an entitlement to leave where a person described under the personal emergency leave provisions was ill. The fact that the employee's grandmother was ill was not disputed. Because the sections of the ESA that created the entitlement were separate from the notice requirements, the employee could be disciplined for not giving notice that he was taking or had taken leave but did not lose his entitlement to take the leave itself.

2. Designating Absences as Sick Leave

Impact of Subsections (7) — (9)

Subsection (7) provides that where an employee takes a paid or unpaid leave of absence under an employment contract in circumstances for which the employee would also be entitled to take a leave under s. 50, the employee is deemed to have taken a leave under s. 50. Subsections (8) and (9) establish rules that apply to the deemed leave.

Accordingly, if subsections (7)-(9) apply to an absence, i.e. an employee takes paid or unpaid leave under the contract of employment in circumstances in which sick leave could be taken, the employee will be deemed pursuant to ss. 50(7) to have taken ESA sick leave and drawn down against statutory the three-day s. 50 entitlement. (See the discussion under s. 50 (7)–(9) for more information regarding the impact of contractual entitlements on the statutory right to sick leave.)

Result Where Subsections (7)-(9) DO NOT apply

On the other hand, if subsections (7)-(9) do not apply, i.e. an employee who is entitled to sick leave is absent due to one of the reasons listed in s. 50(1) but does not take a paid or unpaid leave of absence under an employment contract for that absence (either because the employee does not have a contractual right or does not exercise it), it is the employee (not the employer) who decides whether to designate the absence as a statutory sick leave.

If the employee who is entitled to sick leave and who is absent from work due to one of the reasons listed in s. 50(1) wishes to designate the absence as a statutory sick leave, then the absence is a sick leave that draws down against the three-day statutory entitlement and attracts the corresponding reprisal protections (and all of the other ancillary rights that attach to statutory leaves that are set out in s. 51-53.1)

In the case where s. (7)-(9) do not apply, an employee may be entitled to statutory sick leave and be absent from work due to one of the reasons listed in s. 50(1) and decide not to claim the absence as a sick leave day. This is not considered as contracting out of the ESA 2000 if an employee does not take advantage of their leave entitlements; the employee has merely chosen not to exercise them.

If the employee who is entitled to sick leave by virtue of being absent from work due to one of the reasons listed in s. 50(1) does not wish to designate the absence as a sick leave, and the absence cannot be considered an authorized absence on some other ground (e.g., another leave under the ESA 2000 or vacation authorized by the employer), the absence would have no statutory reprisal protection. For this reason, an employee who takes a day off for a reason that would qualify under s. 50 but who would prefer not to have the day charged against their sick leave allotment may feel effectively forced into designating the day as such a leave. This in itself does not constitute any violation of the ESA 2000: it is not unlawful for an employer to inform an employee that should the employee not designate an absence as a statutory sick leave day, then it would be considered an unexcused absence that will lead to disciplinary action.

Note that if the employee did not know of the right to take sick leave, the default is that the absence is considered to be statutory sick leave with the corresponding reprisal protection. An employee does not lose their right to any of the leaves provided for under the ESA 2000 because they were unaware of their entitlements.

Leave deemed to be taken in entire days – section 50.0.1(6)

Employees may not need an entire work day to attend to the event that gave rise to the family responsibility leave, and might only take part of a day off as family responsibility leave. Section 50.0.1(6) allows an employer in this situation to count the part-day off work as an entire day's leave for the purpose of counting the absence against the statutory three-day leave entitlement. This is the only purpose for which the employer can deem the part day off work as an entire day's leave. The employer cannot deem the employee not to have worked at all on the day. Where an employee worked a partial day and took a part-day of family responsibility leave, the employee is entitled to be paid the earnings for the time that was actually worked that day. As well, the hours that were worked will be counted for the purposes of, among other things, determining whether the relevant overtime threshold has been reached, whether the limits on, for example, the daily and weekly hours of work have been reached, and whether the daily, weekly/bi-weekly and in-between shifts rest requirements have been met.

For clarity, this provision does not require employees to take family responsibility leave in full day periods. It simply allows an employer to reduce the employee’s three-day entitlement by a day if an employee is on family responsibility leave for only part of a day.

Note that this provision allows the employer to attribute one day’s leave to a part-day absence. It does not require the employer to do so.

For example, an employee goes home early from work because her child has the stomach flu. She worked a four-hour day rather than her usual eight hours and takes family responsibility leave. In that case, the employer may consider the employee to have used up one of her three days of family responsibility leave and the employee would be paid her earnings for the four hours she actually worked.

Just because an employer may consider an employee to have used one day of leave due to a part day of absence does not mean that the employee then has the right to take the entire day off if the triggering event did not last the entire day. For example, an employee's shift is from 9 a.m. to 5 p.m. He has to meet with his son's school principal on an urgent matter from 10 a.m. to 11 a.m. The employee claims the absence as family responsibility leave. His employer is entitled to count the absence as an entire day's family responsibility leave, but the employee must nevertheless return to work after the meeting is over. Employees have the right to be away from work under the family responsibility leave provisions of the ESA 2000 only for as long as the need lasts. After the triggering event is over, the employee's normal obligations to attend at work are resumed.

In addition, employers cannot prohibit employees who took a part day of leave from returning to work for the remainder of their shift (This is because, among other reasons, the employer’s s. 53 obligation to reinstate the employee at the end of the leave and the s. 74 prohibition against penalizing employees for having taken a leave.)

For instance, an employer counts a three-hour family responsibility leave as a full day's leave for employee A but not for employee B who also takes a three-hour family responsibility leave because the employer considers employee B to be a better worker than employee A. Although this might be unfair as between employee A and B, it would not be a violation of the ESA 2000, as it would not be a reprisal for exercising a right under the ESA 2000.

If, on the other hand, the motivation for the differential treatment was that Employee A frequently took family responsibility leave every year of only a few hours, and the employer assigned a full day's absence to these short leaves as a way to ensure employee A used up all of their statutory entitlement as soon as possible because the employer found it inconvenient for the employee to be away for short periods of time, that would be an unlawful reprisal.

Evidence – section 50.0.1(7)

Subsection 50.0.1(7) gives an employer an ability to require an employee to provide proof that they are or were entitled to take family responsibility leave. The employer can require an employee to provide evidence that is reasonable in the circumstances that they are or were entitled to take the leave.

Evidence of entitlement to family responsibility leave may take many forms. For example, it could be a note from a daycare provider, school or other care facility. Receipts could also constitute proof , e.g., an invoice from a plumber who was called in to deal with a parent’s flooded basement.

Where the family responsibility leave was for the illness, injury or medical emergency of a person listed in s. 50.0.1(3), the employer cannot require a medical certificate or note in respect of that person — that person is not the employee of the employer and has no obligation to share his or her medical information. (Note that it is different in the family medical leave, family caregiver leave, and critical illness leave contexts. In those cases, the ESA, 2000 specifically states that the employee must obtain a medical certificate providing certain information about the family member and provide a copy of the certificate to the employer upon request.)

Evidence reasonable in the circumstances

Evidence that is reasonable in the circumstances will be fact-specific. The factors and principles that may be relevant when assessing reasonableness are:

The duration of the leave. For example, it may not be reasonable, depending on all of the circumstances, for an employer to require an employee who was away from work for only one day to provide evidence.
Whether there is a pattern of absences or a record of absenteeism. For example, if an employee takes a family responsibility leave day only on Fridays before a long weekend, it may be reasonable for the employer to require some proof of entitlement to the leave even though the leave is of short duration.
Whether any evidence is available. In some circumstances, third parties to whom the leave relates may refuse to provide employees with the evidence the employer has requested.
Where evidence is available, but only with some difficulty, whether it is reasonable to expect the employee to obtain the evidence — see the Re Tilbury Assembly Ltd. and United Auto Workers, Local 251, although note that this decision was made under the previous personal emergency leave provisions.
The cost of the evidence. For example, it may not be reasonable, depending on all of the circumstances, for an employer to require an employee who earns minimum wage to obtain a copy of a police report for a motor vehicle accident if the police station charges $25 for it.
The employee had earlier asked for the time off for non-family responsibility leave reasons for the time at which the absence occurred but was denied.
The employee had announced plans in advance to miss work.

Note that any evidence the employee provides to support the employee’s claim of an entitlement to family responsibility leave is just that — evidence — and is not necessarily determinative of the question of whether the employee had an entitlement. Depending on the circumstances, it may be reasonable for the employer to require additional evidence from the employee.

Evidence relating to court proceedings

The Youth Criminal Justice Act, SC 2002, c 1(YCJA) prohibits the disclosure of any information that may identify a young person who has committed or is alleged to have committed an offence, a young person who is a victim of the offence, or a young person who is called as a witness in any proceeding in connection with the alleged offence. Employees who take a family responsibility leave because a young person specified in s. 50.0.1(3) is involved in a YCJA matter are not obliged to divulge to the employer (or employment standards officer) any information regarding the identity of the young person (e.g., the name or their relationship to the employee). Instead, it is Program policy that it would be reasonable in the circumstances that the employee state that a relative was involved in a court proceeding.

Family responsibility leave taken under employment contract – section 50.0.1(8)

Same, application of act to deemed leave – section 50.0.1(9)

Same, application of subs. (6) to deemed leave – section 50.0.1(10)

These provisions, when read together, establish what happens when an employee takes a leave of absence under an employment contract in circumstances that would also entitle the employee to a leave under s. 50.0.1 of the ESA.

“Circumstances” refers only to the triggering event that would entitle the employee to statutory family responsibility leave (i.e. the employee is absent because of an event listed ins. 50.0.1(1) and the event relates to a person listed ins. 50.0.1(3).)

It is Program policy that “circumstances” does not include the two-week employment eligibility criterion. Accordingly, these provisions will be triggered when an employee takes a leave of absence under an employment contract due to an event listed ins. 50.0.1(1) where the event relates to a person listed ins. 50.0.1(3), even during the first two weeks of employment; this is the case regardless of the fact that the employee does not have the right to take statutory family responsibility leave during this time.

Subsections 8 to 10 codify the long-standing Program policy on the interplay between contractual leave entitlements and statutory leave entitlements where the contractual leave does not amount to a greater right or benefit than statutory family responsibility leave under s. 5(2).

(Note that if a contract does provide a greater right or benefit than the statutory family responsibility leave entitlement — the determination of which includes consideration of reprisal protections and the entitlements under general provisions concerning leaves such as the right to reinstatement — the contractual leave provision applies and s. 50.0.1, including these subsections, does not apply. See the discussion of s. 5(2) for details.)

In general terms, subsections (8)-(10) provide that an employee who claims a contractual benefit for an absence — in circumstances in which the employee would also be entitled to take family responsibility leave for does not have an entitlement to those contractual absences plus an additional three days of family responsibility leave.

If an employee takes a paid or unpaid leave of absence under an employment contract in circumstances for which he or she would also be entitled to take a leave under section 50.0.1, the employee is deemed to have taken a day of family responsibility leave and the absence will reduce the employee’s three-day per calendar year family responsibility leave allotment accordingly. Note that this provision must be read in conjunction with subsections (9) and (10), discussed below.

For this provision to apply, the reason for the absence (i.e. the “triggering event”) and the person in respect of whom the absence is related, must qualify for both the contractual leave and the statutory leave.

Some examples:

An employer offers three paid sick days under a benefit plan which may be used either for the employee or their child. The employee is absent for three days because of a sick child and claims benefits under the plan. Subsection 50(8) deems the employee to have used three ESA family responsibility leave days. As a result, the employee will have no further entitlement to family responsibility leave under the ESA 2000.
The contract of employment provides the employee with a paid “flex” day that can be used for any reason. The employee misses a day of work because she is assisting her mother with a flooded basement, and uses a flex day to avoid a loss in pay. The employee is deemed to have also taken one day of family responsibility leave.
If, however, the contract of employment offers a “flex” day that can be used for any reason, and the employee uses that day to deal with an event that is not set out ins. 50.0.1(1) or to deal with an event that relates to a family member who is not set out ins. 50.0.1(3) , the employee would not be deemed to have taken a day of family responsibility leave pursuant to this provision. For example, an employee uses the flex day to attend his child’s dance recital. He will not be deemed to have taken a day of family responsibility leave pursuant to this provision. This is because an employee is not entitled to take family responsibility leave to attend a child’s dance recital (because attending a dance recital is not an “urgent matter”) Therefore, the contractual leave was not taken “in circumstances for which [the employee] would also be entitled to take a [family responsibility leave]”.

This provision only has the potential to deem a statutory leave to be taken when a contractual leave is taken. It does not do the converse: it does not deem a contractual leave to be taken if a statutory leave is taken in circumstances for which the employee would also be entitled to take a contractual leave. The question as to whether statutory absences will also draw down against the contractual right is not a matter for the employment standards program.

If an absence has been deemed to be a statutory leave under ss. 50.0.1(8), this provision establishes that all requirements and prohibitions under the ESA, 2000 apply to the absence.

This includes all requirements and prohibitions in section 50.0.1 as well as general rights and obligations found in other sections and/or Parts of the Act.

This provision states that subsection (6) applies, with necessary modifications, to a leave that is deemed to be a family responsibility leave pursuant to subsection (8).

This means that if an employee takes a partial-day leave pursuant to his or her contract of employment, and that leave is deemed to be a day of family responsibility leave under subsection 8, the employer may deem the absence to be a full day of family responsibility leave and reduce the employee’s 3-day per calendar year allotment of family responsibility days accordingly.

Section 50.0.2 – Bereavement leave

Bereavement Leave – subsection 50.0.2(1)

Family members – section 50.0.2(3)

The bereavement leave provisions were introduced into the Employment Standards Act, 2000 effective January 1, 2019 by the Making Ontario Open for Business Act, 2018.

Sections 50.0.2(1) and 50.0.2(3) set out the qualifying conditions an employee must meet in order to be entitled to an unpaid bereavement leave. To qualify, the employee must have been employed by the employer for at least two consecutive weeks, and the need for the leave must be because of the death of an individual specified in subsection (3).

Note that, pursuant to section 3 of Ontario Regulation 285/01, certain employees who meet the qualifying criteria for a bereavement leave will not be entitled to take it if taking it would constitute an act of professional misconduct or a dereliction of professional duty. Section 3 of Ontario Regulation 285/01 reads:

3. Sections 50, 50.0.1 and 50.0.2 of the Act do not apply to any of the following persons in circumstances in which the exercise of the entitlement would constitute an act of professional misconduct or a dereliction of professional duty:

See section 3 of Ontario Regulation 285/01 for more information.

1. What triggers an entitlement to bereavement leave

Subsections 50.0.2(1) and 50.0.2(3) lists the event (because of a death), and the people to whom the event must relate, that entitle employees who have been employed for at least two consecutive weeks to take bereavement leave. The list of relatives in subsection (3) is exhaustive. If it was not a listed relative who has died, the employee is not entitled to bereavement leave. If the employee has not been employed for at least two consecutive weeks, the employee is not entitled to a bereavement leave.

Employees can take a bereavement leave, without pay, because of the death of certain listed individuals. Because of is broad wording and can capture many different reasons for requiring time off work. For example, an employee may need time off work to attend a funeral or memorial service; in the case of an employee who is an estate trustee, the employee may need time off to deal with the estate; or the employee may simply be in mourning.

One issue that arises in respect of bereavement leave taken because of the death of a specified family member or dependent relative is whether the leave days must be taken coincident with the death, or can be taken at some later time. Section 50.0.2(1) states that an employee is entitled to the leave because of the death of an individual listed in s. 50.0.2(3). As a result, time off work to attend a burial, interment of ashes or memorial service for the deceased that occurs at any time after the death qualifies as a bereavement leave as it is taken because of the death.

To be entitled to a bereavement leave, the person who died must be listed in subsection (3):

The employee’s spouse (which includes a same-sex spouse);
A parent, step-parent, foster parent, child, step-child, foster child, grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee's spouse (which includes a same-sex spouse);
The spouse (which includes a same sex spouse) of the employee's child;
The employee's brother or sister; and
Any relative of the employee not listed above who is dependent on the employee for care or assistance.

The terms parent and spouse are defined in section 45 of the Employment Standards Act, 2000 – see Part XIV, section 45.

If a person in the list above has not died, or if the person who has died is not found in the above-list, the employee is not entitled to take a bereavement leave.

Relative of the employee who is dependent on the employee for care or assistance

Section 50.0.2(1) entitles employees to a bereavement leave because of the death of a person specified in paragraphs 1 to 7 of subsection 50.0.2(3), including a relative of the employee who is dependent on the employee for care or assistance.

Relative

Black's Law Dictionary, 10^th edition, defines the term relative, as follows:

A person connected with another by blood or affinity; a person who is kin with another. Accordingly, it is Program policy that to be a relative of an employee, the individual should be related through blood or through marriage, adoption or common law relationships between people of the same or opposite sex who are not married. Conversely, it is Program policy that relative in s. 50.0.2(3)), paragraph 7 will not include those individuals who are not connected either by blood or through marriage, adoption or a common law relationship, since including them would be extending the meaning of relative beyond the ordinary, commonly understood meaning.

With respect to common law relationships, the question arises as to how long the individuals have to live together in a conjugal relationship before it can be said that a spousal relationship exists, thus granting relative status to relatives of the employee's spouse. The answer is that there is no minimum amount of time that the individuals must be together in order to qualify as a common law spouse for the purpose of entitlement to personal emergency leave. Unlike the Family Law Act, RSO 1990, c F.3 which, for the purposes of support obligations, limits the definition of unmarried spouse to those people who have lived together continuously for three years or are in a relationship of some permanence if they are the birth or adoptive parents of a child, s. 45 of the ESA 2000 requires only that the individuals live together in a conjugal relationship outside marriage.

Accordingly, it is Program policy that the relationship of relative can be established through a common law relationship between people of the same or opposite sex once there is a conjugal relationship, regardless of how long it has been. (Note that the entitlement to bereavement leave does not arise solely because of the death of a relative. If that relative is not in a category specified in paragraphs 1 through 6, that relative must have been dependent on the employee for care or assistance before his/her death in order for there to be an entitlement to bereavement leave. See the discussion below).

Dependent

An employee is entitled to take bereavement leave because of the death of an individual not in a category specified in paragraphs 1 through 6, only where that individual is a relative who is dependent on the employee for care or assistance. It is Program policy, that in the bereavement leave context, the question to answer is whether the individual is a relative who was dependent on the employee for care or assistance at some point when the relative was alive. The Employment Standards Act, 2000 does not specify how dependent a relative had to have been on the employee for this provision to apply. It only requires that there have been a dependence for care or assistance. As individuals can be dependent on one another for care or assistance without being entirely dependent on that person, it is Program policy that this provision will apply to any relative who had been reliant on the employee to some degree for care or assistance in meeting their basic living needs. The relative did not have to be completely reliant on the employee for all of his or her needs when he or she was alive for this provision to apply.

There is no requirement that the deceased relative have previously lived with the employee for this provision to apply.

2. Designating absences as bereavement leave

For employees who are entitled to bereavement leave as provided for in section 50.0.2, questions have arisen as to whether an employee who is absent from work for the reason listed in section 50.0.2(1) must use one of their two days of bereavement leave. A discussion of this issue is set out at subsection 50.0.2(4) below – see Designating Absences as Bereavement Leave.

Same, limit – section 50.0.2(2)

This section provides that where an employee qualifies for a leave under this section, he or she is entitled to take up to two days of bereavement leave each calendar year. The entitlement is to a total of two days of bereavement leave per calendar year, not two days per relative.

The Employment Standards Act, 2000 does not place any restrictions with respect to whether the two days have to be taken consecutively or individually. Employees can take bereavement leave in part days (although see section 50.0.2(6), which allows employers to deem one day's leave to be taken when an employee takes part of a day off work for bereavement leave), entire days, or in periods of more than one day.

The question arises as to whether the two-day entitlement should be prorated for employees who are part-time, or who started their employment partway through a calendar year but have been employed for at least two consecutive weeks. There is nothing in the legislation to suggest that employees who are eligible for bereavement leave should be entitled to less than two days a calendar year in any of these situations. Accordingly, it is Program policy that pro-rating of the two-day entitlement for part-time employees or employees who were hired partway through a calendar year is not permitted.

The Employment Standards Act, 2000 does not provide for the carryover of unused days of bereavement leave from one calendar year over into the next calendar year. In other words, employees do not have a statutory right to “bank” unused bereavement leave days year over year.

It is Program policy that an employee who quits or is terminated and who is subsequently re-hired by the same employer during the same calendar year is entitled to a new two-day entitlement, after two consecutive weeks of employment upon their re-hire. This is the case even if the employee took some bereavement leave during their first term of employment in that calendar year.

See Greater Right or Benefit at Part III, section 5(2) for a discussion of the application of the greater right or benefit provision to bereavement leave. See also the discussion at ss. 50.0.2(8) – (10) for information regarding the interplay between contractual leave entitlements and statutory entitlements to bereavement leave where the contractual leave does not amount to a greater right or benefit.

Advising employer – subsection 50.0.2(4) and (5)

1. Advising Employer

Section 50.0.2(4) requires employees to tell their employers ahead of time that they will be taking a bereavement leave. In circumstances where that cannot be done, the employee is required, pursuant to s. 50.0.2(5), to inform the employer as soon as possible after beginning the leave.

The ESA 2000 does not require the employee to advise the employer of the bereavement leave in writing. Oral notice is sufficient.

The ESA 2000 does not specify any particular method by which the employer is to be advised that the employee will be taking bereavement leave. Consequently, an employee would be complying with this section whether they, for example, advised the employer by phone, left a note on the manager's desk or had a colleague take a message to the employer on their behalf.

An employee does not lose their right to bereavement leave if they fail to comply with ss. 50.0.2(4) or (5). An employee's entitlement to bereavement leave arises by virtue of one of a number of particular family members having died and the employee taking leave because of the death; it is the Program's position that the failure to advise the employer before or as soon as possible after the leave begins does not negate that entitlement. This approach is consistent with the Program's long-standing policy in the pregnancy and parental leave context, where the structure of the entitlement and notice provisions are similar to these. See ESA 2000 Part XIV, s. 46(4) and s. 48(4).

An issue has arisen as to whether an employer can penalize an employee for failing to give advance notice that they will be absent from work (as may be required under an employer policy), where the time off is a bereavement leave under the ESA 2000. Sections 50.0.2(1) and (3) describe the employee's entitlement (i.e., that the employee takes a leave because of the death of a particular family member). Section 50.0.2(4) requires the employee taking bereavement leave to advise the employer that they are taking the leave, and s. 50.0.2(5) provides that if the employee must begin the leave before advising the employer, the employee shall advise the employer of the leave as soon as possible after beginning it. It is clear from s. 50.0.2(5) that the ESA 2000 contemplates situations where the employee would be unable to advise the employer in advance of commencing the bereavement leave. Part of the bereavement leave entitlement under the ESA 2000 is the right to take bereavement leave even if advance notice cannot be given, with the proviso that the employee must advise the employer of the leave as soon as possible after beginning it.

The employee's failure to give advance notice would not be a lawful basis on which to deprive the employee of the right to take the leave if the qualifying conditions in ss. 50.0.2(1) and (3) have been met. An employer could not, for example, take the position that failure to give advance notice when it would have been possible for the employee to do so will result in the time taken off not being counted as a bereavement leave day.
Any discipline for failing to provide notice in situations where such notice is required under s. 50.0.2(4) (i.e., where s. 50.0.2(5) does not apply) would have to be appropriately linked to the failure to give advance notice and must not, in effect penalize the employee for exercising the right to leave. The motive for any discipline that the employer does impose must clearly be the employee's failure to give advance notice and not the taking of the leave itself.

In addition, an employer would be able to impose discipline if an employee fails to provide any notice of the bereavement leave, or if the employee provides notice of the leave so late that one wouldn’t reasonably be able to say that it falls within s. 50.0.2(5). Again, however, the employer's disciplinary action would have to be appropriate, and in no way a penalty or reprisal for the employee having taken the leave, but only for the failure to give notice. In this regard see Ryding-Regency Meat Packers Ltd. v. U.F.C.W., Local 1000A. In that case, the arbitrator concluded that in relation to the former personal emergency leave, the ESA established an entitlement to leave where a person described under the personal emergency leave provisions was ill. The fact that the employee's grandmother was ill was not disputed. Because the sections of the ESA that created the entitlement were separate from the notice requirements, the employee could be disciplined for not giving notice that he was taking or had taken leave but did not lose his entitlement to take the leave itself.

2. Designating Absences as Bereavement Leave

For employees who are entitled to bereavement leave as provided for ins. 50.0.2, questions have arisen as to whether an employee who is absent from work because of the death of a family member listed inss. (3) must use one of their two days of bereavement leave.

Impact of Subsections (8) – (10)

Subsection (8) provides that where an employee takes a paid or unpaid leave of absence under an employment contract in circumstances for which the employee would also be entitled to take a leave unders. 50.0.2, the employee is deemed to have taken a leave unders. 50.0.2. Subsections (9) and (10) establish rules that apply to the deemed leave.

Accordingly, if subsections (8)-(10) apply to an absence, i.e. an employee takes paid or unpaid leave under the contract of employment in circumstances in which bereavement leave could be taken, the employee will be deemed pursuant toss. 50(8) to have taken ESA bereavement leave and drawn down against the two-days. 50.0.2 entitlement. (See the discussion underss. 50 (8)–(10) for more information regarding the impact of contractual entitlements on the statutory right to bereavement leave.)

Result Where Subsections (8)-(10) DO NOT apply

On the other hand, if subsections (8)-(10) do not apply, i.e. an employee who is entitled to bereavement leave is absent because of the death of a family member who is listed inss. (3) but does not take a paid or unpaid leave of absence under an employment contract for that absence (either because the employee does not have a contractual right or does not exercise it), it is the employee (not the employer) who decides whether to designate the absence as a statutory bereavement leave.

If the employee who is entitled to bereavement leave and who is absent from work because of the death of a family member who is listed inss. (3) wishes to designate the absence as a statutory bereavement leave, then the absence is a bereavement leave that draws down against the two-day statutory entitlement and attracts the corresponding reprisal protections (and all of the other ancillary rights that attach to statutory leaves that are set out inss. 51-53.1)

In the case wheress. (8)-(10) do not apply, an employee may be entitled to statutory bereavement leave and be absent from work because of the death of a family member listed inss. (3) and decide not to claim the absence as a bereavement leave day. This is not considered as contracting out of the ESA 2000 if an employee does not take advantage of their leave entitlements; the employee has merely chosen not to exercise them.

If the employee who is entitled to bereavement leave by virtue of being absent from work because of the death of a family member listed inss. (3) does not wish to designate the absence as a bereavement leave, and the absence cannot be considered an authorized absence on some other ground (e.g., another leave under the ESA 2000 or vacation authorized by the employer), the absence would have no statutory reprisal protection. For this reason, an employee who takes a day off for a reason that would qualify under section 50.0.2 but who would prefer not to have the day charged against their bereavement leave allotment may feel effectively forced into designating the day as such a leave. This in itself does not constitute any violation of the ESA 2000: it is not unlawful for an employer to inform an employee that should the employee not designate an absence as a statutory bereavement leave day, then it would be considered an unexcused absence that will lead to disciplinary action.

Note that if the employee did not know of the right to take bereavement leave, the default is that the absence is considered to be statutory bereavement leave with the corresponding reprisal protection. An employee does not lose their right to any of the leaves provided for under the ESA 2000 because they were unaware of their entitlements.

Leave deemed to be taken in entire days – section 50.0.2(6)

Employees may not need an entire day off work because of the death of a listed relative. As such, an employee may take only part of a day off as bereavement leave. Section 50.0.2(6) allows an employer in this situation to count the part-day off work as an entire day's leave for the purpose of counting the absence against the statutory two-day leave entitlement. This is the only purpose for which the employer can deem the part day off work as an entire day's leave. The employer cannot deem the employee not to have worked at all on the day. Where an employee worked a partial day and took a part-day of bereavement leave, the employee is entitled to be paid the earnings for the time that was actually worked that day. As well, the hours that were worked will be counted for the purposes of, among other things, determining whether the relevant overtime threshold has been reached, whether the limits on, for example, the daily and weekly hours of work have been reached, and whether the daily, weekly/bi-weekly and in-between shifts rest requirements have been met.

For clarity, this provision does not require employees to take bereavement leave in full day periods. It simply allows an employer to reduce the employee’s two-day entitlement by a day if an employee is on bereavement leave for only part of a day.

Note that this provision allows the employer to attribute one day's leave to a part day of absence. It does not require the employer to do so.

For example, the employee may find out in the afternoon that her sister has died and consequently leave work early that day. If she worked a four-hour day rather than her usual eight hours and takes bereavement leave, her employer may consider the employee to have used up one of her two days of bereavement leave and the employee would be paid her earnings for the four hours she actually worked.

In addition, employers cannot prohibit employees who took a part day of leave from returning to work for the remainder of their shift. (This is because, among other reasons, the employer’s ss. 53 obligation to reinstate the employee at the end of the leave and the ss. 74 prohibition against penalizing employees for having taken a leave.)

Evidence – section 50.0.2(7)

Subsection 50.0.2(7) gives an employer an ability to require an employee to provide proof that they are or were entitled to take bereavement leave. The employer can require an employee to provide evidence that is reasonable in the circumstances that they are or were entitled to take the leave.

Evidence of entitlement to bereavement leave may take different forms, including a copy of a death certificate or statement from a funeral home, a published obituary, printed program from a memorial service or proof of an appointment with a funeral director or lawyer.

Evidence reasonable in the circumstances

Evidence that is reasonable in the circumstances will be fact-specific. The factors and principles that may be relevant when assessing reasonableness are:

Whether any evidence is available.
Where evidence is available, but only with some difficulty, whether it is reasonable to expect the employee to obtain the evidence — see the Re Tilbury Assembly Ltd. and United Auto Workers, Local 251, although note that this decision was made under the previous personal emergency leave provisions.
The cost of the evidence. For example, it may not be reasonable, depending on all of the circumstances, for an employer to require an employee who earns minimum wage to obtain a note supporting attendance at a meeting with a lawyer on estate matters if the lawyer charges $25 for it.
The employee had earlier asked for the time off for non-bereavement leave reasons for the time at which the absence occurred but was denied.
The employee had announced plans in advance to miss work.

Bereavement leave taken under employment contract – section 50.0.2(8)

Same, application of act to deemed leave – section 50.0.2(9)

Same, application of subs. (6) to deemed leave – section 50.0.2(10)

Circumstances refers only to the triggering event that would entitle the employee to statutory bereavement leave (i.e. the employee is absent because of the death of an individual listed ins. 50.0.2(3).)

It is Program policy that “circumstances” does not include the two-week employment eligibility criterion. Accordingly, these provisions will be triggered when an employee takes a leave of absence under an employment contract because of the death of an individual listed ins. 50.0.2(3), even during the first two weeks of employment; this is the case regardless of the fact that the employee does not have the right to take statutory bereavement leave during this time.

Subsections (8) to (10) codify the long-standing Program policy on the interplay between contractual leave entitlements and statutory leave entitlements where the contractual leave does not amount to a greater right or benefit than statutory bereavement leave under s. 5(2).

(Note that if a contract does provide a greater right or benefit than the bereavement leave entitlement — the determination of which includes consideration of reprisal protections and the entitlements under general provisions concerning leaves such as the right to reinstatement — the contractual leave provision applies and s. 50.0.2, including these subsections, does not apply. See the discussion of s. 5(2) for details.)

In general terms, subsections (8)-(10) provide that an employee who claims a contractual benefit for an absence — in circumstances which the employee would also be entitled to take bereavement leave — does not give the employee an entitlement to those contractual absences plus an additional two days of bereavement leave.

If an employee takes a paid or unpaid leave of absence under an employment contract in circumstances for which he or she would also be entitled to take a leave under section 50.0.2, the employee is deemed to have taken a day of bereavement leave and the absence will reduce the employee’s two-day per calendar year bereavement leave allotment accordingly. Note that this provision must be read in conjunction with subsections (9) and (10), discussed below.

Some examples:

An employer offers two flex days that employees can use at their discretion. The employee is absent for two days because of the death of her sister and claims benefits under the employer's plan. Subsection (8) deems the employee to have used two ESA bereavement days.
If, however, the contract of employment offers a flex day that can be used for any reason, and the employee uses that day to attend the memorial service of her great-aunt (who had not been dependent on the employee for care or assistance)the employee would not be deemed to have taken a day of bereavement leave pursuant to this provision. This is because a great-aunt is not a listed relative for whom a leave can be taken in s. 50.0.2 and, therefore, the contractual leave was not taken in circumstances for which [the employee] would also be entitled to take a [bereavement leave].

If an absence has been deemed to be a statutory leave under subsection 50.0.2(8), this provision establishes that all requirements and prohibitions under the ESA, 2000 apply to the absence.

This includes all requirements and prohibitions in section 50.0.2 as well as general rights and obligations found in other sections and/or Parts of the Act.

This provision states that subsection (6) applies, with necessary modifications, to a leave that is deemed to be a bereavement leave pursuant to subsection (8).

This means that if an employee takes a partial-day leave pursuant to his or her contract of employment, and that leave is deemed to be a day of bereavement leave under subsection (8), the employer may deem the absence to be a full day of bereavement leave and reduce the employee’s 2-day per calendar year allotment of bereavement leave days accordingly.

Section 50.1 – Emergency Leave: Declared Emergencies and Infectious Disease Emergencies

Employees Deemed to be on Unpaid Infectious Disease Emergency Leave

O. Reg. 228/20 created certain temporary rules under the ESA that applied during a defined “COVID-19 period”, including providing that employees were deemed to be on unpaid infectious disease emergency leave where specified conditions were met. The “COVID-19 period” began on March 1, 2020 and ended on July 30, 2022. As such, employees are no longer deemed to be on this leave as of July 31, 2022. Reference to the provisions that deemed an employee to be on unpaid infectious disease emergency leave have been maintained in this publication since employment standards officers may still be required to make determinations with respect to occurrences arising during the COVID-19 period and the temporary deemed leave.

Declared Emergency Leave

During a declared emergency, an employee may have the right to take declared emergency leave. Employees who will not be performing the duties of their position because of the declared emergency and because of certain specified circumstances related to the declared emergency are entitled to the leave. At the time of writing, there is no declared emergency in effect and so employees are not entitled to take this leave.

Section 50.1 was amended effective March 19, 2020 by the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 to expand emergency leave to cover infectious disease emergencies. Prior to the amendment, this section only addressed declared emergencies.

Although the amendment was effective on March 19, 2020, employees’ entitlements to unpaid infectious disease emergency leave for Coronavirus (COVID‑19) for reasons set out in subclauses (i)-(vi) of s. 50.1(1.1) are, by virtue of O. Reg. 228/20 (and initially by virtue of O. Reg. 66/20, which was later revoked and replaced by O. Reg. 228/20), retroactive to January 25, 2020.

Entitlement to infectious disease emergency leave where an employer temporarily reduces or eliminates a non-unionized employee’s hours of work for COVID‑19 related reasons as prescribed in section 4 of O.Reg. 228/20 was retroactive to March 1, 2020 and applied during the defined COVID‑19 period – see below for details.

Entitlement to infectious disease emergency leave was retroactive to July 24, 2020, where an employee was not performing the duties of their position because they were subject to an order related to COVID-19 that:

was made under s. 7.0.2 of the Emergency Management and Civil Protection Act (EMCPA) , and,
continued under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (ROA), or any amendment to such an order. See the discussion later in this chapter for details.

Section 50.1 was amended on April 29, 2021 by the COVID‑19 Putting Workers First Act, 2021 to provide employees with an additional entitlement of up to three paid days of infectious disease emergency leave in certain circumstances related to a designated infectious disease. Although the amendment came into force on April 29, 2021, employees’ entitlements to paid infectious disease emergency leave were retroactive to April 19, 2021. Entitlements to paid infectious disease emergency leave were originally set to end on September 25, 2021 but were subsequently extended to December 31, 2021, to July 31, 2022 and then again to March 31, 2023. The ESA was also amended on April 29, 2021 to provide that an eligible employer is entitled to be reimbursed the amount of infectious disease emergency leave pay that they paid to their employees, up to $200 per employee per day taken. Eligible employers make their application for reimbursement to the Workplace Safety and Insurance Board – see the discussion of s. 50.1.1 for details.

Emergency Leave: Declared Emergencies and Infectious Disease Emergencies – s. 50.1(1)

50.1 (1) In this section,

“board of health” has the same meaning as in the Health Protection and Promotion Act;

“designated infectious disease” means an infectious disease designated by the regulations for the purposes of this section;

“public health official” means,

within the meaning of the Health Protection and Promotion Act,
1. the Chief Medical Officer of Health or Associate Chief Medical Officer of Health,
2. a medical officer of health or an associate medical officer of health, or
3. an employee of a board of health, or
a public health official of the Government of Canada;

“qualified health practitioner” means,

a person who is qualified to practise as a physician or nurse under the laws of the jurisdiction in which care or treatment is provided to the employee or an individual described in subsection (8), or
in the prescribed circumstances, a member of a prescribed class of health practitioners.

Subsection 50.1(1) contains definitions of some of the terms that are used in s. 50.1.

These terms are used only in the infectious disease emergency leave context. See the discussion of the infectious disease emergency leave provisions for information on the meaning of these terms.

Interpretation, treatment – s. 50.1 (1.0.1)

50.1(1.0.1) For greater certainty, in this section, a reference to treatment related to a designated infectious disease includes receiving a vaccine for the designated infectious disease and recovery from associated side-effects.

This subsection clarifies that references to “treatment related to a designated infectious disease” in s. 50.1 includes receiving a vaccine for the disease and recovery from side-effects of the vaccine.

This is relevant for the eligibility criteria for both unpaid and paid infectious disease emergency leave. (See ss. 50.1(1.1)(a)(i) in respect of unpaid infectious disease emergency leave and ss. 50.1(1.2), para. 1 in respect of paid infectious disease emergency leave). These eligibility criteria state that an employee is eligible for the leave if the employee will not be performing the duties of his or her position because, among other reasons, “the employee is under individual medical investigation, supervision or treatment related to the designated infectious disease”.

This subsection means that employees are eligible for unpaid and paid infectious disease emergency leave if they are not performing the duties of their position because they are receiving a vaccine and/or because they are experiencing side effects of the vaccine.

Leave of Absence Without Pay – s. 50.1(1.1)

50.1(1.1) An employee is entitled to a leave of absence without pay if the employee will not be performing the duties of his or her position,

because of an emergency declared under s. 7.0.1 of the Emergency Management and Civil Protection Act and,
1. because of an order that applies to him or her made under section 7.0.2 of the Emergency Management and Civil Protection Act;
2. because of an order that applies to him or her made under the Health Protection and Promotion Act;
3. because he or she is needed to provide care or assistance to an individual referred to in subsection (8); or
4. because of such other reasons as may be prescribed; or
because of one or more of the following reasons related to a designated infectious disease:
1. The employee is under individual medical investigation, supervision or treatment related to the designated infectious disease.
2. The employee is acting in accordance with an order under section 22 or 35 of the Health Protection and Promotion Act that relates to the designated infectious disease.
3. The employee is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means.
4. The employee is under a direction given by his or her employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the designated infectious disease.
5. The employee is providing care or support to an individual referred to in subsection (8) because of a matter related to the designated infectious disease that concerns that individual, including, but not limited to, school or day care closures.
6. The employee is directly affected by travel restrictions related to the designated infectious disease and, under the circumstances, cannot reasonably be expected to travel back to Ontario.
7. Such other reasons as may be prescribed.

Subsection (1.1) establishes the eligibility criteria for both declared emergency leave and unpaid infectious disease emergency leave, in clauses (a) and (b) respectively. (The eligibility criteria for paid infectious disease emergency leave are set out in subsection 50.1(1.2).)

These are dealt with separately below.

Declared emergency leave eligibility criteria – ss. 50.1(1.1)(a)

On June 30, 2006, the Employment Standards Act, 2000 was amended by the Emergency Management Statute Law Amendment Act, 2006, SO 2006, c 13, to create a new unpaid leave called, "emergency leave, declared emergencies", which the Program refers to as "declared emergency leave".

Declared emergency leave is available only if the Premier or Lieutenant Governor in Council declares an emergency under section 7.0.1 of the Emergency Management and Civil Protection Act (and only if the eligibility criteria set out in clause 50.1(1.1)(a) are then met).

The Lieutenant Governor in Council declared an emergency because of COVID-19 on March 17, 2020. The emergency declaration was terminated on July 24, 2020. A second emergency was declared because of COVID-19 on January 12, 2021 and terminated on February 9, 2021. A third emergency was declared because of COVID-19 on April 7, 2021 and terminated on June 2, 2021.

Employees who will not be performing the duties of their position because of the declared emergency and because of certain specified circumstances related to the declared emergency are entitled to an unpaid, job-protected declared emergency leave.

Clause (a) of ss. 50.1(1.1) establishes the qualifying criteria that must be met in order for an employee to be entitled to an unpaid declared emergency leave of absence. To qualify, both of the following conditions must be met:

Condition 1: The employee will not be performing the duties of the employee’s position because of the emergency that was declared under section 7.0.1 of the Emergency Management and Civil Protection Act, RSO 1990 c E.9 ("EMCPA"); and

Condition 2: The employee will not be performing the duties of the employee’s position because of one of the following reasons:

an order that applies to the employee made under s. 7.0.2 of the EMCPA;
an order that applies to the employee made under the Health Protection and Promotion Act, RSO 1990, c H.7 ("HPPA");
the employee is needed to provide care or assistance to an individual referred to in s. 50.1(8); or
such other reasons as may be prescribed. (At the time of writing, no other reasons have been prescribed.)

As noted, both conditions 1 and 2 above must be met before the entitlement to declared emergency leave arises: an employee will not be performing the duties of the employee’s position because of a declared emergency AND because of one of the reasons listed in (i), (ii), (iii), or (iv) above. These conditions are discussed below.

Condition 1: Employee will not be performing the duties of the employee’s position because of the emergency that was declared under section 7.0.1 of the Emergency Management and Civil Protection Act (EMCPA):

Section 7.0.1 of the EMCPA gives the Lieutenant Governor in Council or, in certain circumstances, the Premier, the ability to declare that an emergency exists throughout Ontario or in any part of Ontario.

The first qualifying criterion for declared emergency leave is that there is a causal connection between the reason that the employee will not be performing the duties of the employee’s position and the emergency that has been declared under s. 7.0.1 of the EMCPA.

Condition 2: Employee will not be performing the duties of the employee’s position because of one of the following reasons:

An order that applies to the employee made under s. 7.0.1 7.0.2 of the Emergency Management and Civil Protection Act (subclause (i))

During a declared emergency, the Lieutenant Governor in Council, in certain circumstances and with certain limitations, may make orders under s. 7.0.1 7.0.2 of the EMCPA that it believes are necessary and essential in the circumstances to prevent, reduce or mitigate serious harm to persons or substantial damage to property.

The condition in subclause (i) of s. 50.1(1.1)(a) will be met if an order made under s. 7.0.1 7.0.2 of the EMCPA applies to the employee and there is a causal connection between the order and the employee not performing the duties of the employee’s position.

The Program considers an order to “appl[y] to” an employee only if the order is directed at the employee, i.e., where the employee, either individually or as part of a group, is the subject of the requirement, prohibition or other direction made in the order.

In other words, this condition is not satisfied if an employee is only indirectly affected by the order or by the consequences of someone else complying with the order.

For example, an order that requires restaurants to close “applies to” the owners of restaurants. It does not apply to the employees of restaurants, even though they are affected by the closure.

Under the HPPA, orders can be issued by a medical officer of health or the courts requiring individuals or classes of persons to take or refrain from taking any action specified in the order. For example, under the communicable disease order provisions in s. 22 of the HPPA, an order can be issued requiring individuals to isolate themselves.

The condition in subclause (ii) of s. 50.1(1.1)(a) will be met if an order made under the HPPA applies to the employee (see the discussion of subclause (i) for the meaning of “applies to” the employee) and there is a causal connection between the order and the employee not performing the duties of the employee’s position.

This subclause is engaged only if the instrument that was made under the HPPA was an “order”. For example, “directives” may also be issued under the HPPA but “directives” do not satisfy this condition. (Note that an employee who is affected by a “directive” under the HPPA may, depending on all the circumstances, be entitled to an infectious disease emergency leave pursuant to s. 50.1(1.1)(b)(iii) or s.50.1(1.2), para. 3. See the discussion of that provision for more information.)

An employee is entitled to declared emergency leave under subclause (iii) of s. 51.1(1.1)(a) if there is a causal connection between the need to provide care or assistance to an individual listed in s. 50.1(8) and the declared emergency.

The employee can be providing the care or assistance in Ontario or in another province, territory, or or country and be eligible for declared emergency leave.

Section 50.1(8) was amended effective March 19, 2020 to include more individuals. However, because the first declared emergency relating to COVID‑19 was made on March 17, 2020, the list of individuals to whom an employee is needed to provide care or assistance in order to be eligible for declared emergency leave is different on March 17 and 18 than it is from March 19 onwards to the end of the declared emergency on July 24, 2020, as follows:

For absences on March 17 or 18, 2020, the employee will meet the condition under subclause (iii) if, because of the declared emergency, the employee is needed to provide care or assistance to any of these individuals:

The employee's spouse (which includes a same-sex 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 or of the employee’s spouse.
The spouse (which includes a same-sex 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.

For absences on or after March 19, 2020, the employee will meet the condition under subclause (iii) if, because of the declared emergency, the employee is needed to provide care or assistance to any of these individuals:

The employee’s spouse (which includes a same-sex 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.
Any individual prescribed as a family member for the purposes of this section. (At the time of writing, no individuals were prescribed.)

"Spouse" includes married same-sex couples, married opposite-sex couples, and couples of the same or opposite sex who live together in a conjugal relationship outside of marriage – see the definition of spouse and the discussion at ESA Part XIV, s.. 45

With respect to "a person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met" in paragraph 13: at the time of writing there were no prescribed conditions that had to be met.

The declared emergency entitlement is for providing care or assistance. This includes, for example, looking after minor children, providing psychological or emotional support to the family member, assisting the family member with regular household chores (e.g., housekeeping, laundry, shopping) as well as arranging for care by a third party provider, and directly providing or participating in the personal care of the family member. Care or assistance also includes assisting the family member to get their affairs in order, where, for example, the family member is at risk of death.

Note that other leaves of absence in the ESA (infectious disease emergency leave, family medical leave, family caregiver leave, critical illness leave) have eligibility criteria relating to an employee “providing care or support” to specified individuals, while declared emergency leave uses the language “providing care or assistance”. It is Program policy that the same interpretation applies to both phrases. In the context of leave entitlements, where the legislative language is given a broad and liberal interpretation, the types of activities that would fall under a broad view of “support” and a broad view of “assistance” are the same.

Examples of situations where, in the Program’s view, this condition would be met during the COVID‑19 declared emergency include:

An employee will not be performing the duties of the employee’s position because the employee is needed to provide care or assistance to his elderly mother who lives in another city and is in self-isolation due to the COVID‑19 declared emergency.
An employee will not be performing the duties of the employee’s position because the employee needs to stay at home with his 5-year old child because the child’s school has been temporarily closed as a result of the COVID‑19 declared emergency.
An employee has been buying groceries and picking up medication for her elderly aunt for several years. The employee works six days a week and would normally do the shopping on her day off on Monday. Because of the COVID‑19 declared emergency, grocery stores have reduced their hours and are now closed on Mondays and during the employee’s off-hours on working days. If the employee takes time from work to do the shopping, she would be eligible for declared emergency leave during that time.

Situations where, in the Program’s view, this condition would not be met during the COVID‑19 declared emergency include:

An employee lives with her brother who has a compromised immune system. The brother has been advised by his doctor to remain at home. The brother is self-sufficient and does not need his sister for care or assistance. The employee wants to self-isolate to reduce the risk of exposing her brother to COVID‑19.
The employee is not eligible for declared emergency leave under this subclause.
The employee satisfies the first condition for declared emergency leave: she is not performing the duties of her position because of the COVID‑19 declared emergency (i.e., to avoid making her brother sick). However, she does not satisfy the second condition under this clause: while self-isolating may be a caring action in this situation, it does not constitute “providing care or assistance”.

Unpaid infectious disease emergency leave eligibility criteria – ss. 50.1(1.1)(b)

Start Dates of Eligibility

On March 19, 2020, the Employment Standards Act, 2000 was amended by the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 to expand unpaid emergency leave to cover infectious disease emergencies, which the Program refers to as Infectious Disease Emergency Leave. (That Act also repealed the SARS Assistance and Recovery Strategy Act, 2003, which provided leave entitlements relating to SARS.)

Although the amendment that expanded emergency leave to include infectious disease emergencies was effective on March 19, 2020, employees’ entitlements to unpaid infectious disease emergency leave for COVID‑19 for reasons set out in clauses (i)-(vi) of s. 50.1(1.1)(b) are, by virtue of O. Reg. 228/20 (and initially by virtue of O. Reg. 66/20, which was later revoked and replaced by O. Reg. 228/20) retroactive to January 25, 2020.

Entitlement to unpaid infectious disease emergency leave where an employer temporarily reduced or eliminated a non-unionized employee’s hours of work for COVID‑19 related reasons as prescribed in ss. 4(1), para. 1 of O. Reg. 228/20 pursuant to clause (vii) of s. 50.1(1.1)(b) was retroactive to March 1, 2020 and applied during the defined COVID‑19 period in ss. 1(1) of O. Reg. 228/20. When the conditions set out in ss. 4(1), para. 1 of O. Reg. 228/20 were met, the employee was automatically deemed to be on infectious disease emergency leave. The COVID-19 period ended on July 30, 2022.

was made under s. 7.0.2 of the Emergency Management and Civil Protection Act (EMCPA) , and,
continued under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (ROA), or any amendment to such an order. See the discussion later in this chapter for details.

See the end of this chapter for information on the implications of the retroactive application of this unpaid leave.

Which Diseases Create Eligibility

Employees have the right to take unpaid job-protected infectious disease emergency leave if they will not be performing the duties of their position because of certain specified reasons related to a designated infectious disease. The diseases that have been designated as infectious diseases are set out in section 2 of O. Reg. 228/20.

At the time of writing, diseases caused by a novel coronavirus, including Severe Acute Respiratory Syndrome (SARS), Middle East Respiratory Syndrome (MERS) and coronavirus (COVID‑19) have been designated as infectious diseases.

O. Reg. 228/20 establishes the start dates for the entitlement to infectious disease emergency leave for the different reasons for which the leave may be taken. At the time of writing, COVID‑19 was the only infectious disease for which there were start dates. Accordingly, the only disease for which unpaid infectious disease emergency leave may be taken at this time is COVID‑19.

End Dates of Eligibility

Regarding end dates for the entitlement to unpaid infectious disease emergency leave, note that:

an employee’s entitlement to unpaid infectious disease emergency leave because of a reason set out in subclauses 50.1(1.1(b)(i) to (vi) is not time-limited . An amendment would be required to O. Reg. 228/20 in order to extinguish the entitlement to take infectious disease emergency leave for COVID‑19 under those subclauses.
an employee’s entitlement where an employer temporarily reduced or eliminated a non-unionized employee’s hours of work for COVID‑19 related reasons as prescribed in ss. 4(1), para. 1 of O. Reg. 228/20 pursuant to clause (vii) of s. 50.1(1.1)(b) applied only during the defined COVID‑19 period in ss. 1(1) of O. Reg. 228/20, which ended on July 30, 2022.
an employee’s entitlement where they were subject to an order related to COVID-19 that was made under section 7.0.2 of the Emergency Management and Civil Protection Act and continued under the Reopening Ontario (A Flexible Response to COVID‑19) Act, 2020 (ROA) (or any amendment to such an order) was retroactive to July 24, 2020 and available only when the relevant ROA order was in force, as prescribed in ss. 3.1(1), para. 1 of O. Reg. 228/20 pursuant to clause (vii) of s. 50.1(1.1)(b)

Clause (b) of ss. 50.1(1.1) establishes the qualifying criteria that must be met in order for an employee to be entitled to an unpaid infectious disease emergency leave of absence.(See ss. 50.1(1.2) for the qualifying criteria for paid infectious disease emergency leave.)

Employees who will not be performing the duties of their position because of one or more of the following reasons related to a designated infectious disease are entitled to an unpaid infectious disease emergency leave:

The employee is under individual medical investigation, supervision or treatment related to the designated infectious disease.
The employee is acting in accordance with an order under section 22 or 35 of the Health Protection and Promotion Act that relates to the designated infectious disease.
The employee is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means.
The employee is under a direction given by his or her employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the designated infectious disease.
The employee is providing care or support to an individual referred to in subsection (8) because of a matter related to the designated infectious disease that concerns that individual, including, but not limited to, school or day care closures.
The employee is directly affected by travel restrictions related to the designated infectious disease and, under the circumstances, cannot reasonably be expected to travel back to Ontario.
Such other reasons as may be prescribed.

These eligibility criteria are discussed individually below.

Employees have the right to be on unpaid infectious disease emergency leave only for as long as the event that triggered the entitlement to the leaves lasts. After the triggering event is over, the employee’s normal obligations to be at work are resumed.

Eligibility criteria for unpaid infectious disease emergency leave – Clauses (i) – (vii)

Employees who will not be performing the duties of their position because they are under individual medical investigation, supervision or treatment (including for mental health) related to the designated infectious disease are eligible for unpaid infectious disease emergency leave.

The Act does not impose any restrictions with respect to where the medical investigation, supervision or treatment has to be undertaken in order for this eligibility criterion to be met. The investigation, supervision or treatment can be in Ontario, another province or territory, or another country.

Subsection 50.1(1.0.1), which was introduced into the Act on April 29, 2021, codifies previous Program policy that “treatment related to the designated infectious disease” in subclause “i” includes receiving a vaccine for the designated infectious disease and recovery from side effects of that vaccine. (The Program policy was based on the term “treatment” including preventative treatment, and was consistent with the definition of “treatment” in the Health Care Consent Act.) As such, employees who are not performing the duties of their position because they are getting vaccinated against the designated infectious disease or are experiencing side effects from the vaccine - whether or not the employee is under the care of a medical practitioner with respect to those side effects - are eligible for unpaid infectious disease emergency leave.

Employees who will not be performing the duties of their position because they are acting in accordance with an order under s. 22 or s. 35 of the Health Protection and Promotion Act (HPPA) that relates to the designated infectious disease are eligible for unpaid infectious disease emergency leave. This criterion is met only if the order is, in whole or in part, directed at the employee or a class of persons that the employee fits into.

Section 22 of the HPPA authorizes a medical officer of health to require individuals or classes of persons to take or refrain from taking any action specified in the order in relation to a communicable disease. Orders may include actions such as requiring the person to whom the order is directed to isolate himself or herself, to place himself or herself forthwith under the care and treatment of a physician, or to conduct himself or herself in such a manner as not to expose anyone else to infection.

Section 35 of the HPPA authorizes a judge of the Ontario Court of Justice to issue orders when someone has failed to comply with certain orders that were issued by a medical officer of health in respect of a communicable disease that is a virulent disease. (Note that not all designated infectious diseases are necessarily designated as virulent diseases). Orders issued under s. 35 may, for example, require that someone be taken into custody and admitted and detained in a hospital.

Under this subclause, an employee is eligible for unpaid infectious disease emergency leave if the employee will not be performing the duties of the employee’s position because:

The employee is in quarantine, isolation, or is subject to a control measure ( whether voluntarily or involuntarily),

To qualify for this leave under subclause (iii), the employee must not be performing the duties of his or her position because the employee is in quarantine, isolation, or is subject to a control measure ( whether voluntarily or involuntarily).

It is the Program’s position that “in quarantine”, “in isolation”, or “is subject to a control measure” is a step or an action implemented as the result of information or directions related to the designated infectious disease issued to the public, to a part of the public, or to one or more individuals by an entity listed in the provision (see below for more information). Depending on the circumstances, quarantine, isolation or a control measure may be initiated by an employee, initiated by an employer and agreed to by an employee, or imposed on an employee in response to the information or direction.

With respect to “subject to a control measure”: take an example where, in the context of a designated infectious disease outbreak, the Chief Medical Officer of Health issues a public statement or directive providing that employees who come in close contact with an at-risk population while at work should avoid working at other jobs that involve significant contact with the general population, in order to decrease the chances of spreading the disease to the at-risk population. An employee has two jobs - one that requires close contact with an at-risk population and one that involves significant contact with the general population. If the employee stops performing the duties at one of her jobs as a result of the information or direction provided by the Chief Medical Officer of Health, the employee is considered to be subject to a control measure and therefore meets the eligibility criteria under subclause (iii). As such, she would be entitled to take an infectious disease emergency leave from the workplace where she is no longer performing her duties. (This is the case whether it was the employee who decided which workplace to stop performing duties at, or if it happened at the direction of one of the employers.)

AND

The quarantine, isolation or control measure was implemented as a result of information or directions related to a designated infectious disease that was issued to the public in whole or in part or to one or more people by:

a “public health official”. This term is defined in ss. 50.1(1) and means:
1. within the meaning of the Health Protection and Promotion Act:
  - the Chief Medical Officer of Health or Associate Chief Medical Officer of Health,
  - a medical officer of health or an associate medical officer of health, or
  - an employee of a board of health,
2. a public health official of the Government of Canada
a “qualified health practitioner”. This term is defined in s. 50.1(1) and means, “a person who is qualified to practice as a physician or nurse under the laws of the jurisdiction in which care or treatment is provided to the employee or an individual described in subsection (8)”.

The qualified health practitioner can be in Ontario, or in another province, territory or another country. So long as the information or direction provided by the qualified health practitioner is related to the designated infectious disease, this condition will be satisfied if the physician or nurse has provided care or treatment to the employee, whether or not the care or treatment was related to the designated infectious disease. For example, an employee who has an immune deficiency and who was told by his physician to self-isolate and not go to work during the COVID‑19 outbreak is eligible for infectious disease emergency leave.

Telehealth Ontario
The Government of Ontario or of Canada.

It is the Program’s position that where information is provided or directions are issued by the Premier of Ontario or the Prime Minister of Canada, this is done in their capacity as representatives of the Government of Ontario and the Government of Canada, respectively.

One question that has arisen is whether direction obtained through the Ontario.ca website COVID‑19 self-assessment tool amounts to directions related to COVID‑19 issued to an individual “by the Government of Ontario”. It is the Program’s position that it does. As such, if an employee completes the assessment questionnaire on the Ontario.ca website with the relevant information specific to the employee’s symptoms and/or risk factors and receives direction that she or he is to self-isolate for a set number of days, then the employee is entitled to take infectious disease emergency leave for the duration of the self-isolation.

Another question that has arisen is whether orders issued under the federal Quarantine Act amount to direction related to COVID‑19 issued to an individual “by the Government of Canada”. It is the Program’s position that it does.

Similarly, it is the Program’s position that orders under the Emergency Management and Civil Protection Act (EMCPA) or the Reopening Ontario (A Flexible Response to COVID‑19) Act, 2020 (ROA) amount to a “direction” issued “by the Government of Ontario”.

For example, an order was issued under the EMCPA (and continued under the ROA when it ceased to be an order under the EMCPA on July 24, 2020) prohibiting employees who perform work in a long-term care home from performing work at more than one long-term care home location, and from performing work both at a long-term care home and in a retirement home or at a long-term care home and for any other health service provider. (A similar order applied to employees who perform work at a retirement home.) An employee who, for example, had two jobs – one at a long-term care home and one at a retirement home – and stoppeds performing the duties at one of the homes as a result of the order was considered to be subject to a control measure implemented as a result of directions related to a designated infectious disease that was issued to the public in whole or in part or to one or more people by the Government of Ontario and therefore met the eligibility criteria under subclause (iii). As such, she would be entitled to take an infectious disease emergency leave from the job where she is no longer performing her duties.

Under this subclause, an employee is eligible for unpaid infectious disease emergency leave if the employee will not be performing the duties of the employee’s position in response to the employer’s concern that the employee may expose others in the workplace to the designated infectious disease. Some examples include:

An employer is concerned that an employee who recently travelled or attended a public gathering may expose others in the workplace to a designated infectious disease. In response, the employer orders the employee to stay away from the workplace for a certain period of time.
An employer is concerned that an employee whose wife is in self-isolation for the designated infectious disease directs the employee to stay away from the workplace out of a concern that the employee may have the disease and expose others in the workplace to it.
An employer is concerned that an employee who is displaying symptoms of the designated infectious disease has the disease and directs the employee to stay away from the workplace until the employee provides a doctor’s note stating that the employee does not have the disease. This example would apply even if the employee stated the symptoms were caused by something unrelated to the infectious disease, such as severe allergies.
An employer provides a general direction to all employees in the context of the designated infectious disease outbreak that if they feel ill they should not come to work. An employee who then stays home because the employee is experiencing symptoms that have been associated with the designed infectious disease is eligible for leave under subclause (iv).
An employer chooses to make a policy about COVID‑19 vaccination and tells an employee not to come to work until the employee has been vaccinated against the designated infectious disease, out of a concern that unvaccinated employees may have the disease and expose others in the workplace to it. An employee who stays home until vaccinated is eligible for leave under subclause (iv).

This subclause does not create authority for employers to direct employees to stay away from the workplace and not perform the duties of their position in response to a concern about exposing others to a designated infectious disease. This subclause is simply providing that if the employer does that, the employee is eligible for an infectious disease emergency leave. The ESA does not address issuesssues about health and safety in the workplace and employers’ authority to exclude employees from the workplace. As such, the question of whether the employers’ actions described in the examples above are appropriate or lawful under other laws is not a matter for the ES Program.

Note as well that s. 4(1) of O. Reg. 228/20 prescribes an additional reason for which employees were entitled to infectious disease emergency leave: the employee’s hours of work were temporarily reduced or temporarily eliminated by the employer for reasons related to COVID-19 during the defined COVID-19 period. The COVID-19 period is defined in O. Reg. 228/20 and was the period from March 1, 2020 to July 30, 2022. O. Reg. 228/20 then deemed employees to be on unpaid infectious disease emergency leave any time during the COVID-19 period when the employee was not performing the duties of his or her position for that reason. Although it may be argued that s. 4(1) of O. Reg. 228/20 should apply during the COVID-19 period to the situation where the employer temporarily reduced or eliminated an employee’s hours of work out of a concern that the employee may expose others in the workplace to COVID-19 rather than this subclause, it is Program policy that where employees were not performing the duties of their position because they were under a direction given by their employer in response to a concern of the employer that they may expose other individuals in the workplace to the designated infectious disease, the employee was eligible for unpaid infectious disease emergency leave under clause (iv) of s. 51.1(1.1)(b) or may have, depending on the circumstances and the timing, had an entitlement to paid infectious disease emergency leave under paragraph 4 of s. 50.1(1.2). (It may matter to an employee which provision the entitlement arises under because s. 4 of O. Reg. 228/01 establishes exemptions to the rules regarding continued participation in certain benefit plans during a deemed leave.)

The employee can be providing the care or support in Ontario or in another province, territory country and be eligible for infectious disease emergency leave.

The individuals with respect to whom an employee can take this leave are listed in subsection (8) as follows:

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.
Any individual prescribed as a family member for the purposes of this section. (At the time of writing, no individuals were prescribed.)

“Providing Care or Support”

The designated infectious disease entitlement is for providing care or support. This includes, for example, looking after minor children, providing psychological or emotional support to the family member, assisting the family member with regular household chores (e.g., housekeeping, laundry, shopping) as well as arranging for care by a third party provider, and directly providing or participating in the personal care of the family member. Care or support also includes assisting the family member to get their affairs in order, where, for example, the family member is at risk of death.

Example of situations where, in the Program’s view, an employee would not be eligible for an infectious disease emergency leave under subclause (v) include:

An employee lives with her brother who has a compromised immune system. The brother has been advised by his doctor to remain at home during an outbreak of a designated infectious disease. The brother is self-sufficient and does not need his sister for care or support. The employee wants to self-isolate to reduce the risk of exposing her brother to the designated infectious disease.

The employee is not eligible for infectious disease emergency leave under this subclause.

Although the employee would not be performing the duties of her position because of the designated infectious disease (i.e. to avoid making her brother sick), she would not be “providing care or support”. While self-isolating may be a caring action in this situation, it does not constitute “providing care or support”.

“Matter related to the designated infectious disease”

For a matter to be related to the designated infectious disease, there must be a causal connection between the “matter” in question and the designated infectious disease.

Closures of schools and day cares that are related to the designated infectious disease are specifically stated in subclause (v) as matters that are related to the designated infectious disease. So for example, an employee who will not be performing the duties of the employee’s position because the employee is providing care to his 5-year old child whose school has been temporarily closed because of the designated infectious disease is eligible for infectious disease emergency leave.

Where daycares or schools have reopened, it is Program policy that an employee who is concerned that the child will come into contact with COVID‑19 at the daycare or school and as a result does not send the child to daycare or school is entitled to infectious disease emergency leave in order to provide care to the child. (This is because the situation falls squarely within the wording of subclause (v): the employee will be providing care to the child, and the reason the care is being provided is because of a matter related to COVID‑19 that concerns the child, i.e. the matter is that the child is not going to daycare or school because of fears of coronavirus exposure.)

Similarly, an employee who is providing care or support to an elderly parent who had been living in a long-term care home but who left the home due to fears of catching COVID‑19 is entitled to infectious disease emergency leave.

It is also Program policy that the cancellation of summer day camps because of COVID‑19 also constitutes a matter related to the designated infectious disease. For example, an employee who will not be performing the duties of his position because he is providing care to his child who otherwise would have been at a day camp for five weeks in the summer that was cancelled because of COVID‑19 is eligible for infectious disease emergency leave for those five weeks.

Other examples of situations where, in the Program’s view, an employee is eligible for infectious disease emergency leave under subclause (v) include:

An employee will not be performing the duties of the employee’s position because the employee is providing care or support to his elderly mother who lives in another city and is in self-isolation due to the designated infectious disease.
An employee has been buying groceries and picking up medication for her elderly aunt for several years. The employee works six days a week and would normally do the shopping on her day off on Monday. Because of a pandemic of the designated infectious disease, grocery stores have reduced their hours and are now closed on Mondays and during the employee’s off-hours on working days. If the employee takes time from work to do the shopping, she would be eligible for infectious disease emergency leave during that time.

For example, this would include an employee who is on a cruise ship that is not permitted to dock in any country because of the concern that passengers are infected by a designated infectious disease.

There may be some situations where an employee is affected by travel restrictions (for example where there are no international commercial airline flights available) but the employee has other options available to travel back to Ontario. This condition will be met if it would not be reasonable to expect the employee to use alternative options.

What is reasonable will depend on the circumstances. For example, an employee was vacationing in Mexico City when Canada banned all flights from Mexico for two weeks. The employee could rent a car or take a series of buses and trains to return to Ontario but that would not be a reasonable expectation in the circumstances.

This provision applies only where the employee is directly affected by the travel restrictions. In other words, it applies only where the employee’s travel back to Ontario is affected.

This provision applies only when the employee is caught by travel restrictions while outside of Ontario.

Subsection 4(1) of O. Reg. 228/20 prescribes an additional reason for which non-unionized employees were eligible for infectious disease emergency leave during the “defined COVID-19 period”: the employee’s hours of work were temporarily reduced or temporarily eliminated by the employer for reasons related in whole or in part to the designated infectious disease.
Subsection 4(2) of O. Reg. 228/20 deems employees who are not performing the duties of their position because of the prescribed reason to be on the leave in respect of any time they are not performing their duties for this reason during the “COVID‑19 period”, which is defined in O. Reg. 228/20 to be the period beginning on March 1, 2020 and ending July 30, 2022.
Subsection 3.1(1) of O. Reg. 228/20 prescribes an additional reason, retroactive to July 24, 2020: an order made under s. 7.0.2 of the Emergency Management and Civil Protection Act (EMCPA) that is continued under the Reopening Ontario (A Flexible Response to COVID‑19) Act, 2020 (ROA), or any amendment to such an order, that relates to the designated infectious disease applies to the employee.
Note that prior to this reason being prescribed, it was Program policy that employees who were not performing the duties of their position because an EMCPA order that was continued under the ROA applied to them were eligible for infectious disease emergency leave based on subclause (iii) of s. 50.1(1.1)(b): these employees were considered to be subject to a control measure on the basis of a direction issued by the Government of Ontario. From the Program’s perspective, the addition of s. 3(1) to O. Reg. 228/20 provides greater certainty that employees in this situation are entitled to infectious disease emergency leave.
See the discussion of the prescribed reasons in the discussion of O. Reg. 228/20.

Leave of absence with pay – ss. 50.1(1.2)

The employee is under individual medical investigation, supervision or treatment related to the designated infectious disease.
The employee is acting in accordance with an order under section 22 or 35 of the Health Protection and Promotion Act that relates to the designated infectious disease.
The employee is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means.
The employee is under a direction given by his or her employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the designated infectious disease.
The employee is providing care or support to an individual referred to in subsection (8) because,
1. the individual is under individual medical investigation, supervision or treatment related to the designated infectious disease, or
2. the individual is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means.

Subsection 50.1(1.2) was introduced into the ESA by the COVID‑19 Putting Workers First Act, 2021 (CPWFA) on April 29, 2021.

The amendments made by the CPWFA provide employees with an entitlement of up to three paid days of infectious disease emergency leave in certain circumstances related to a designated infectious disease. These entitlements are in addition to the entitlement to unpaid infectious disease emergency leave.

Although the amendments came into force on April 29, 2021, employees’ entitlements to paid infectious disease emergency leave are retroactive to April 19, 2021. Entitlements to paid infectious disease emergency leave end on September 25, 2021 or such later date as may be prescribed. At the time of writing, March 31, 2023 was the prescribed end date (see O. Reg. 228/20, s. 11.)

The CPWFA also amended the ESA to provide that eligible employers are entitled to be reimbursed the amount of infectious disease emergency leave pay that they paid to their employees, up to $200 per employee per day taken. Eligible employers make their application for reimbursement to the Workplace Safety and Insurance Board – see the discussion of s. 50.1.1 for details.

Subsection 50.1(1.2) establishes qualifying criteria that must be met in order for an employee to be entitled to paid infectious disease emergency leave of absence. These criteria are a narrower subset of the reasons that entitle employees to unpaid infectious disease emergency leave. (See ss. 50.1(1.1)(b) for the qualifying criteria for unpaid infectious disease emergency leave.)

Subsection 50.1(1.2) must be read in conjunction with the rest of the section, including new subsections 50.1(1.3) – (1.13). Briefly, those subsections provide:

ss. (1.3): the entitlement to paid infectious disease emergency leave is limited to three days
ss. (1.4) - (1.5): the three day entitlement is reduced by the number of days – if any – an employee was entitled to paid leave under an employment contract on April 19, 2021 in any of the circumstances for which an employee would also be entitled to paid infectious disease emergency leave, but only where the contract required the employer to pay the employee at least as much as the employee would be entitled to be paid under ss. 50.1(1.11) of the ESA.
ss. (1.6): the employer may deem an employee who takes any part of a day as paid infectious disease emergency leave to have used up one full day of the employee’s ESA allotment.
ss. (1.7) - (1.10): An employee is entitled to take their paid leave before the unpaid leave. An employee who is entitled to paid infectious disease emergency leave may elect to take the leave as unpaid infectious disease emergency leave, but only if the employee provides the employer written notice of that election by a specified deadline. (Employees who took unpaid infectious disease emergency leave between April 19, 2021 and April 28, 2021 inclusive were able to elect to be paid for that leave if they met the eligibility criteria and advised the employer in writing by May 12, 2021.)
ss. (1.11) - (1.13): these subsections establish the manner of calculating the amount of infectious disease emergency leave pay an employee on paid infectious disease emergency leave is entitled to, with a cap of $200 per day.

Employees have the right to be on paid infectious disease emergency leave only for as long as the event that triggered the entitlement to the leave lasts. After the triggering event is over, the employee’s normal obligations to be at work are resumed.

Employees who will not be performing the duties of their position because of one or more of the reasons set out in ss. 50.1(1.2) related to a designated infectious disease are entitled to a paid infectious disease emergency leave. Each reason is dealt with separately below.

1. The employee is under individual medical investigation, supervision or treatment related to the designated infectious disease.

This eligibility criterion for paid infectious disease emergency leave is the same as the eligibility criterion for unpaid infectious disease emergency leave in subclause (i) of s. 50.1(1.1)(b). As such, an employee who meets this eligibility criterion but has no remaining ESA paid infectious disease emergency leave days, or who elects to opt-out of the paid leave in accordance with ss. (1.8), will be entitled to unpaid infectious disease emergency leave.

Subsection 50.1(1.0.1), which was introduced into the Act on April 29, 2021 at the same time that paid infectious disease emergency leave was introduced, codified previous Program policy in the unpaid infectious disease emergency leave context that “treatment related to the designated infectious disease” in subclause “i” of ss. 50.1(1.1)(b) includes receiving a vaccine for the designated infectious disease and recovery from side effects of that vaccine. (The pre-April 29, 2021 Program policy was based on the term “treatment” including preventative actions, and was consistent with the definition of “treatment” in the Health Care Consent Act.) As such, employees who are not performing the duties of their position because they are getting vaccinated against the designated infectious disease or are experiencing side effects from the vaccine - whether or not the employee is under the care of a medical practitioner with respect to those side effects - are eligible for paid infectious disease emergency leave.

2. The employee is acting in accordance with an order under section 22 or 35 of the Health Protection and Promotion Act that relates to the designated infectious disease

This eligibility criterion for paid infectious disease emergency leave is the same as the eligibility criterion for unpaid infectious disease emergency leave in subclause (ii) of s. 50.1(1.1)(b). As such, an employee who meets this eligibility criterion but has no remaining ESA paid infectious disease emergency leave days, or who elects to opt-out of the paid leave in accordance with ss. (1.8), will be entitled to unpaid infectious disease emergency leave.

Employees who will not be performing the duties of their position because they are acting in accordance with an order under s. 22 or s. 35 of the Health Protection and Promotion Act (HPPA) that relates to the designated infectious disease are eligible for paid infectious disease emergency leave. This criterion is met only if the order is, in whole or in part, directed at the employee or a class of persons that the employee fits into.

3. The employee is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means

This eligibility criterion for paid infectious disease emergency leave is the same as the eligibility criterion for unpaid infectious disease emergency leave in subclause (iii) of s. 50.1(1.1)(b). As such, an employee who meets this eligibility criterion but has no remaining ESA paid infectious disease emergency leave days, or who elects to opt-out of the paid leave in accordance with ss. (1.8), will be entitled to unpaid infectious disease emergency leave.

Under this paragraph, an employee is eligible for paid infectious disease emergency leave if the employee will not be performing the duties of the employee’s position because:

The employee is in quarantine, isolation, or is subject to a control measure (whether voluntarily or involuntarily),
To qualify for this leave under paragraph 3, the employee must not be performing the duties of his or her position because the employee is in quarantine, isolation, or is subject to a control measure (whether voluntarily or involuntarily).
It is the Program’s position that “in quarantine”, “in isolation”, or “is subject to a control measure” is a step or an action implemented as the result of information or directions related to the designated infectious disease issued to the public, to a part of the public, or to one or more individuals by an entity listed in the provision (see below for more information). Depending on the circumstances, quarantine, isolation or a control measure may be initiated by an employee, initiated by an employer and agreed to by an employee, or imposed on an employee in response to the information or direction.
With respect to “subject to a control measure”: take an example where, in the context of a designated infectious disease outbreak, the Chief Medical Officer of Health issues a public statement or directive providing that employees who come in close contact with an at-risk population while at work should avoid working at other jobs that involve significant contact with the general population, in order to decrease the chances of spreading the disease to the at-risk population. An employee has two jobs - one that requires close contact with an at-risk population and one that involves significant contact with the general population. If the employee stops performing the duties at one of her jobs as a result of the information or direction provided by the Chief Medical Officer of Health, the employee is considered to be subject to a control measure and therefore meets the eligibility criteria under paragraph 3. As such, she would be entitled to take a paid infectious disease emergency leave from the workplace where she is no longer performing her duties. (This is the case whether it was the employee who decided which workplace to stop performing duties at, or if it happened at the direction of one of the employers.)
AND
The quarantine, isolation or control measure was implemented as a result of information or directions related to a designated infectious disease that was issued to the public in whole or in part or to one or more people by:
1. a “public health official”. This term is defined in ss. 50.1(1) and means:
  1. within the meaning of the Health Protection and Promotion Act:
    1. the Chief Medical Officer of Health or Associate Chief Medical Officer of Health,
    2. a medical officer of health or an associate medical officer of health, or
    3. an employee of a board of health,
  2. a public health official of the Government of Canada
2. a “qualified health practitioner”. This term is defined in s. 50.1(1) and means, “a person who is qualified to practice as a physician or nurse under the laws of the jurisdiction in which care or treatment is provided to the employee or an individual described in subsection (8)”.
  
  The qualified health practitioner can be in Ontario, or in another province, territory or another country.
  So long as the information or direction provided by the qualified health practitioner is related to the designated infectious disease, this condition will be satisfied if the physician or nurse has provided care or treatment to the employee, whether or not the care or treatment was related to the designated infectious disease. For example, an employee who has an immune deficiency and who was told by his physician to self-isolate and not go to work during the COVID‑19 outbreak is eligible for paid infectious disease emergency leave.
Telehealth Ontario
The Government of Ontario or of Canada.
It is the Program’s position that where information is provided or directions are issued by the Premier of Ontario or the Prime Minister of Canada, this is done in their capacity as representatives of the Government of Ontario and the Government of Canada, respectively.
One question that has arisen is whether direction obtained through the Ontario.ca website COVID‑19 self-assessment tool amounts to directions related to COVID‑19 issued to an individual “by the Government of Ontario”. It is the Program’s position that it does. As such, if an employee completes the assessment questionnaire on the Ontario.ca website with the relevant information specific to the employee’s symptoms and/or risk factors and receives direction that she or he is to self-isolate for a set number of days, then the employee is entitled to paid infectious disease emergency leave (and to unpaid infectious disease emergency leave if the employee runs out of ESA paid infectious disease emergency leave entitlements or has those entitlements but elects to take unpaid leave in accordance with ss. 50.1(1.8)).
Another question that has arisen is whether orders issued under the federal Quarantine Act amount to direction related to COVID‑19 issued to an individual “by the Government of Canada”. It is the Program’s position that it does.
Similarly, it is the Program’s position that orders under the Emergency Management and Civil Protection Act (EMCPA) or the Reopening Ontario (A Flexible Response to COVID‑19) Act, 2020 (ROA) amount to a “direction” issued “by the Government of Ontario”.
For example, a ROA order prohibited employees who performed work in a long-term care home from performing work at more than one long-term care home location, and from performing work both at a long-term care home and in a retirement home or at a long-term care home and for any other health service provider. (A similar order applie d to employees who performed work at a retirement home.) An employee who, for example, had two jobs – one at a long-term care home and one at a retirement home – and stopped performing the duties at one of the homes as a result of the order is considered to be subject to a control measure implemented as a result of directions related to a designated infectious disease that was issued to the public in whole or in part or to one or more people by the Government of Ontario and therefore me t the eligibility criteria under subclause (iii). As such, she would be entitled to paid infectious disease emergency leave from the job where she was no longer performing her duties (and to unpaid infectious disease emergency leave if she ran out of ESA paid infectious disease emergency leave entitlements or had those entitlements but elected to take unpaid leave in accordance with ss. (1.8)).
(Note that O. Reg. 228/20 was amended on August 24, 2020 to explicitly state that, retroactive to July 24, 2020, an employee is entitled to take unpaid infectious disease emergency leave where the employee is not performing the duties of his or her position because the employee is subject to an order that relates to COVID‑19 under the ROA - see s. 3.1 of O. Reg. 228/20. From the Program’s perspective, this amendment provided greater certainty that employees in this situation are entitled to unpaid infectious disease emergency leave, and that even though there is no corresponding provision that applies with respect to paid infectious disease emergency leave, it is the Program’s position that this eligibility criterion for paid infectious disease emergency leave is met where the employee is not performing the duties of his or her position because the employee is subject to an order that relates to COVID‑19 under the ROA .)
A municipal council in Ontario
It is the Program’s position that where information is provided or directions are issued by the Mayor of a particular municipality in Ontario, this is done in the Mayor’s capacity as a representative of that municipality’s municipal council.
A board of health
Subclause (iii) provides that the information or direction may be communicated “whether through print, electronic, broadcast or other means”. All methods of communication are captured, including, for example, in-person, telephone, e-mail, the internet, radio, television, newspapers, text message alerts, terminal screens (e.g., at airports, train stations, in subway stations), billboards and signs.

4. The employee is under a direction given by his or her employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the designated infectious disease

This eligibility criterion for paid infectious disease emergency leave is the same as the eligibility criterion for unpaid infectious disease emergency leave in subclause (iv) of s. 50.1(1.1)(b). As such, an employee who meets this eligibility criterion but has no remaining ESA paid infectious disease emergency leave days, or who elects to opt-out of the paid leave in accordance with ss. (1.8), will be entitled to unpaid infectious disease emergency leave.

Under this paragraph, an employee is eligible for paid infectious disease emergency leave if the employee will not be performing the duties of the employee’s position in response to the employer’s concern that the employee may expose others in the workplace to the designated infectious disease. Some examples include:

An employer is concerned that an employee who recently travelled or attended a public gathering may expose others in the workplace to a designated infectious disease. In response, the employer orders the employee to stay away from the workplace for a certain period of time.
An employer is concerned that an employee whose wife is in self-isolation for the designated infectious disease directs the employee to stay away from the workplace out of a concern that the employee may have the disease and expose others in the workplace to it.
An employer is concerned that an employee who is displaying symptoms of the designated infectious disease has the disease and directs the employee to stay away from the workplace until the employee provides a doctor’s note stating that the employee does not have the disease. This example would apply even if the employee stated the symptoms were caused by something unrelated to the infectious disease, such as severe allergies.
An employer provides a general direction to all employees in the context of the designated infectious disease outbreak that if they feel ill they should not come to work. An employee who then stays home because the employee is experiencing symptoms that have been associated with the designed infectious disease is eligible for leave under paragraph 4.
An employer chooses to make a policy about COVID‑19 vaccination and tells an employee not to come to work until the employee has been vaccinated against the designated infectious disease, out of a concern that unvaccinated employees may have the disease and expose others in the workplace to it. An employee who stays home until vaccinated is eligible for leave under paragraph 4.

This paragraph does not create authority for employers to direct employees to stay away from the workplace and not perform the duties of their position in response to a concern about exposing others to a designated infectious disease. This paragraph is simply providing that if the employer does that, the employee is eligible for a paid infectious disease emergency leave. The ESA does not address issues about health and safety in the workplace or employers’ authority to exclude employees from the workplace. As such, the question of whether the employers’ actions described in the examples above are appropriate or lawful under other laws is not a matter for the ES Program.

Note also there is no requirement that the employer’s concern that the employee may expose other individuals in the workplace to the designated infectious disease be well-founded in order for an entitlement to arise under this paragraph. For example, an employee has an allergy that makes the employee’s skin blotchy. Although blotchy skin is not a symptom of a designated infectious disease, the employer is misinformed and is genuinely concerned that the employee may expose others to a designated infectious disease. If the employer therefore directs the employee to stay away from the workplace and not perform the duties of the employee’s position, the employee will be eligible for infectious disease emergency leave.

The employee is providing care or support to an individual referred to in subsection (8) because,
1. the individual is under individual medical investigation, supervision or treatment related to the designated infectious disease, or
2. the individual is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means.

This eligibility criterion for paid infectious disease emergency leave is a narrower subset of the eligibility criterion regarding providing care or support to certain relatives for unpaid infectious disease emergency leave in subclause (v) of s. 50.1(1.1)(b). As such, an employee who meets this eligibility criterion but has no remaining ESA paid infectious disease emergency leave days, or who elects to opt-out of the paid leave in accordance with ss. (1.8), will be entitled to unpaid infectious disease emergency leave.

Under this paragraph, an employee is eligible for paid infectious disease emergency leave if the employee will not be performing the duties of the employee’s position because the employee is providing care or support to an individual contained in the list in subsection (8) because of the reasons set out in subclause (i) or (ii).

The employee can be providing the care or support in Ontario or in another province, territory country and be eligible for paid infectious disease emergency leave.

The individuals with respect to whom an employee can take this leave are listed in subsection (8) as follows:

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.
Any individual prescribed as a family member for the purposes of this section. (At the time of writing, no individuals were prescribed.)

“Providing Care or Support”

An employee is entitled to paid infectious disease emergency leave if the employee is providing care or support to an individual listed in subsection (8) if:

the individual is under individual medical investigation, supervision or treatment related to the designated infectious disease, or
the individual is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means.

With respect to subclause (i):

Employees who will not be performing the duties of their position because an individual listed in subsection 51.1(8) is under individual medical investigation, supervision or treatment (including for mental health) related to the designated infectious disease are eligible for paid infectious disease emergency leave.

Subsection 50.1(1.0.1), which was introduced into the Act on April 29, 2021 at the same time that paid infectious disease emergency leave was introduced, codified previous Program policy in the unpaid infectious disease emergency leave context that “treatment related to the designated infectious disease” in subclause “i” includes receiving a vaccine for the designated infectious disease and recovery from side effects of that vaccine. (The Program policy was based on the term “treatment” including preventative actions, and was consistent with the definition of “treatment” in the Health Care Consent Act.) As such, employees who are not performing the duties of their position because they are providing care or support to an individual listed in subsection (8) is getting vaccinated for the designated infectious disease or is experiencing side effects from the vaccine - whether or not the individual is under the care of a medical practitioner with respect to those side effects - are eligible for paid infectious disease emergency leave.

With respect to subclause (ii): this is same as the eligibility criterion under paragraph 3 of this subsection (except under paragraph 3 it is the employee him or herself who is in quarantine, isolation or subject to a control measure and here the employee is providing care or support to an individual listed in subsection (8) who is in quarantine, isolation or is subject to a control measure). See the discussion under paragraph 3 above for information on this eligibility criterion.

Limit, number of days – ss. 50.1(1.3)

This subsection provides that an employee is entitled to take up to three days of paid infectious disease emergency leave.

The Act does not place any restrictions on whether the three days have to be taken consecutively or individually.

Employees can take paid infectious disease emergency leave in entire days or part days (although see ss. 50.1(1.6), which allows employers to deem one day’s leave to be taken when an employee takes part of a day off work for paid infectious disease emergency leave).,

The entitlement to three days of paid leave is subject to ss. 50.1(1.4) and (1.5), which provide that an employee’s entitlement to three days of paid infectious disease emergency leave may be reduced or eliminated in certain circumstances where the employee had an entitlement to paid leave under their employment contract on April 19, 2021. See below for details.

Paid leave taken under employment contract – ss. 50.1(1.4), (1.5)

These subsections provide that an employee’s entitlement to three days of paid infectious disease emergency leave as set out in ss. 50.1(1.3) is reduced or eliminated in circumstances where the employee had certain entitlements to paid leave under an employment contract on April 19, 2021.

An employee’s entitlement to three days of paid infectious disease emergency leave is reduced only where all of these criteria are met on April 19, 2021:

an employee’s employment contract provides entitlements to a paid leave for one or more of the same reasons that paid infectious disease emergency leave can be taken under the ESA,
the employee had paid leave entitlements under their employment contract remaining on April 19, 2021 (i.e. the employee had not used up all of the contractual leave that meets criterion 1 before April 19, 2021),
the amount the employer is required to pay the employee for paid leave under the employment contract on April 19, 2021 is at least as much as the employee would be entitled to under the formula set out in ss. 50.1(1.11), and
the contract does not impose conditions on taking the contractual leave that are more onerous than what is set out in the ESA to take paid infectious disease emergency leave.

Each of these criteria is discussed below.

Criterion 1: an employee’s employment contract provides entitlements to a paid leave for one or more of the same reasons that paid infectious disease emergency leave can be taken under the ESA

An employee’s entitlement to three days of paid infectious disease emergency leave can be reduced only if the employee’s contract of employment provides the employee with paid leave for one or more reasons that paid infectious disease emergency leave can be taken. The reasons for which leave can be taken under the contract do not have to exactly match the reasons that paid infectious disease emergency leave can be taken under the ESA for the reduction to apply.

Some examples:

a contract provides three days of paid leave for the employee’s personal illness and can be taken by the employee if the employee is sick from COVID‑19. Because being sick from COVID‑19 is one the reasons for which an employee can take paid infectious disease emergency leave, this criterion is met. If criteria 2 - 4 are also met with respect to the contractual sick days, and the employee has all three days of contractual leave available to her on April 19, 2021, the three days of contractual leave reduce the employee’s three-day entitlement to paid infectious disease emergency leave to zero days.
a contract provides an employee with two paid “floater days” that can be taken for any reason. Because this would be available for the same reasons for which an employee can take paid infectious disease emergency leave, this criterion is met. If criteria 2 - 4 are also met with respect to the floater days, and the employee has not taken either floater day by April 19, 2021, the two days of contractual leave reduce the employee’s three-day entitlement to paid infectious disease emergency leave to one day.
A contract provides an employee with three paid “family responsibility days” that could be used to provide care or support to immediate family members who are sick with COVID‑19. Because this would be available for some of the reasons for which the employee can take paid infectious disease emergency leave, this criterion is met. If criteria 2 - 4 are also met with respect to the family responsibility days, and the employee has all three days of contractual leave available to her on April 19, 2021, the three days of contractual leave reduce the employee’s three-day entitlement to paid infectious disease emergency leave to zero days.

Criterion 2: the employee had paid leave entitlements under their employment contract remaining on April 19, 2021

Criterion 1 dealt with the question of the reasons for which an employee has an entitlement to paid leave under their contract and how many days of leave the contract provides.

Criterion 2 deals with the question of the amount of leave entitlements the employee had remaining on April 19, 2021.

An employee’s three-day paid infectious disease emergency leave entitlement is reduced only if the employee had not used up all of the contractual leave entitlements that met Criterion 1 on April 19, 2021 (and only if criteria 3 and 4 are also met).

For example:

a contract provides an employee with two paid sick days and one “floater day” that meet the criteria in criteria 1.
the employee took the two contractual paid sick days in January 2021, so had zero contractual paid sick days available on April 19, 2021.
the employee had not used the “floater” day before April 19, 2021, so that day remained available to the employee.
in this example, the employee has one day of paid leave that meets the conditions in criterion 1 available on April 19, 2021. That one day reduces the employee’s three-day entitlement by one day (assuming criteria 3 and 4 are also met).
This employee is therefore entitled to two paid days of infectious disease emergency leave under the ESA.

Criterion 3: the amount the employer is required to pay the employee for paid leave under the employment contract on April 19, 2021 is at least as much as the employee would be entitled to under the formula set out in ss. 50.1(1.11)

Contractual leave entitlements that meet criteria 1 and 2 will only reduce an employee’s three-day paid infectious disease leave entitlement if the employer is required under the contract to pay the employee for the paid contractual leave an amount that is equal to or greater than what the employee would be entitled to under the infectious disease emergency leave pay formula set out in ss. 50.1(1.11) of the ESA. (In very general terms, the formula provides that employees are entitled to the lesser of $200 and the wages the employee would have earned had the employee not taken the leave, excluding overtime pay, a shift premium and premium pay on a public holiday, and with a special rule for employees who receive performance-related wages. See the discussion of ss. 50.1(1.11) for details.)

For example: an employee is entitled under the contract to salary continuance when the employee is away for personal illness. Because this provides an amount that is equal to or greater than what the formula for infectious disease emergency leave pay would provide, this criterion is met.

Because the analysis as to whether this criterion is met is performed with respect to the contractual entitlement on April 19, 2021, any changes to the employees’ contractual entitlements after April 19, 2021 do not factor into the analysis. For example, an employee who earns $200 a day has a contract that provides three days of leave for personal illness with pay of $150 per day. This contractual entitlement does not meet Criterion 3 (it would have to provide $200 per day to satisfy this criterion) so will not reduce the three-day paid infectious disease emergency leave entitlement. This is the case even if the employer makes changes to increase the employee’s contractual pay for leave for personal illness to $200 per day after April 19, 2021. However, see the heading at the end of the discussion of this subsection titled “Whether taking a paid infectious disease emergency leave day draws down the employee’s contractual entitlement”.

In some situations it may not be possible to make a determination in advance of the leave being taken as to whether, on April 19, 2021, the contractual entitlement meets this criterion. For example, the contract provides that an employee who takes a family leave is entitled to 75% of the wages the employee would have earned while on the leave. Whether or not this criterion is met depends on future events that happen after April 19, 2021 – i.e. the length of any leave the employee takes and the employee’s wage rate at the time. In this situation – where there is uncertainty as to whether this criterion is met on April 19, 2021 because it depends on future events - the employer may engage in a two-step analysis: one on April 19, 2021 (this would be the point at which the employer would realize that, in the case of the specific contractual language and the specific employee’s wage rate, that the results of the analysis will vary depending on the length of the employee’s leave) and then a second review after the leave occurs (it would only be at this point at which the employer would be able to assess whether criterion 3 applies). After the second review, any necessary adjustments against the ESA’s 3-day allotment of paid infectious disease emergency leave could be made when it is known whether the contractual pay entitlement is at least as much as the employee would be entitled to receive under the ESA.

For example:

an employee is entitled under the contract to 75% of the employee’s hourly rate while the employee is on contractual family leave.
The employee earns $50 per hour and works eight hour shifts.
If the employee takes a contractual family leave for a full day, the employee would be entitled to $300 under the contract (8 x $50 x 75%). The formula in the ESA for infectious disease emergency leave pay would entitle the employee to $200. Criterion 3 would be met in this case.
However, if this employee takes a contractual family leave for only 5 hours in a day, criterion 3 would not be met. This is because the formula in the ESA for infectious disease emergency leave pay results in an entitlement of $200 (the lesser of $200 and 5 x $50) while the entitlement under the contract is for $187.50 (5 x $50 x 75%). Since the contractual pay is less than what the employee would be entitled to receive as infectious disease emergency leave pay under the ESA, criterion 3 would not be met in this case.
Under this example, the employer in this case will only be able to reduce the ESA allotment of three paid infectious disease emergency leave after the employee has taken the leave of absence and would only be able to do so in the first scenario where the employee took the full day of contractual leave. The employer would not be able to reduce the ESA allotment if the employee took the contractual leave for only 5 hours.

Criterion 4: the contract does not impose conditions on taking the contractual leave that are more restrictive than what is set out in the ESA to take paid infectious disease emergency leave

Because ss. 50.1(1.4) says that the reduction can happen only if an employee is “entitled to take paid leave under an employment contract in any of the circumstances for which employees would also be entitled to take a leave under subsection (1.2)”, contractual leave entitlements that meet criteria 1, 2, and 3 will only reduce an employee’s three-day paid infectious disease leave entitlement if the conditions for taking paid contractual leave are no more restrictive than what is set out in the ESA for taking paid infectious disease emergency leave, including that the employee’s employment contract incorporates all of the ESA’s general provisions concerning leaves (as set out in ss. 51-53.1) and the ESA’s anti-reprisal provisions.

Some examples of when there are more restrictive conditions for taking paid leave under the employment contract are:

under the ESA, an employer cannot require an employee to provide a note from a doctor as evidence of the employee’s entitlement to paid infectious disease emergency leave. If the contract requires the production of note from a doctor in order for the employee to take the paid leave under the contract, this criterion would not be met.

although the ESA requires an employee to advise their employer ahead of time that the employee will be taking a leave (or as soon as possible after starting it if advance notice is not possible), the employee does not lose the right to paid infectious disease emergency leave if the employee fails to provide the notice. But, if getting paid leave under the contract is conditional on the employee providing advance notice to the employer, this criterion would not be met.

As with Criterion 3, in some situations it may not be possible to make a determination as to whether, on April 19, 2021, the contractual entitlement meets Criterion 4. For example, a contract provides an employee with ten fully paid days of leave for personal illness per calendar year and the employee had not used any of them as of April 19, 2021. These contractual entitlements meet Criteria 1, 2 and 3. However, the contract requires employees to provide a medical note - which is not permitted in the ESA for paid infectious disease emergency leave - when the employee has three or more consecutive days of absence for personal illness. Whether or not Criterion 4 is met depends on events that happen after April 19, 2021 (the date the determination is made) – i.e. whether the employee takes a contractual leave for personal illness in single days, two consecutive days, or 3 or more consecutive days. In this situation – where there is uncertainty as to whether this criterion is met on April 19, 2021 because it depends on future events- the employer may engage in a two-step analysis: one on April 19, 2021 and the second when the future event happens and make the necessary adjustments to the results of the analysis.

Where All Four Criteria Are Met

If, on April 19, 2021, the employee’s contractual leave entitlements meet all four criteria (or, where a two-step analysis is done as described under Criteria 3 and 4 that results in the contractual leave entitlements meeting all four criteria), the employee’s three-day entitlement to paid infectious disease emergency leave under the ESA is reduced by the amount of leave available to the employee under the employee’s employment contract that meets all four of these criteria.

Differences from how contractual entitlements are treated under other leaves

Note that the provision establishing the approach to “drawing down” is very different in the context of paid infectious disease emergency leave as compared to the sick leave, family responsibility leave and bereavement leave provisions of the ESA.

In the paid infectious disease emergency leave context, the analysis about contractual entitlements happens on April 19, 2021 – not when the employee is absent. The analysis involves a comparison of the reasons for the leave entitlements that are available to the employee under the contract with the reasons for paid infectious disease emergency leave available under the ESA.

It is important to note that the reasons for leave under the contract and the reasons for leave under the Act do not have to match perfectly in order for the contract to reduce the employee’s three-day ESA entitlement. If a reason for leave under the contract is also one of the reasons the paid leave is available under the Act, the three-day entitlement under the Act is reduced (assuming the contractual leave meets all the other conditions described above). This means that there can be situations where an employee will not have the right to paid leave under either the contract or the ESA when the employee is, after April 19, 2021, away for a reason that the ESA sets out as a qualifying reason for a paid infectious disease leave entitlement. (Although note that in this situation, the employee would have a right to unpaid infectious disease emergency leave under the Act.)

For example, the only paid leave an employee has a contractual entitlement to is to three fully paid “family days”. These days could be used to care for a specified individual who contracted COVID‑19. These are therefore contractual days that could be used for one or more of the reasons for which paid infectious disease emergency leave can be taken. As such, if the employee has three of these days available under his contract on April 19, 2021 and all of the other conditions described above are met, the employee would not be entitled to any days of paid infectious disease emergency leave under the ESA. If the employee wanted paid time off to get tested for COVID‑19 or to get vaccinated against COVID‑19, the employee would not have a right to that paid leave under the contract or under the ESA (though the employee would have an entitlement to take that time as unpaid infectious disease emergency leave).

Here are some additional examples of how the rule about contractual entitlements work in the paid infectious disease emergency leave context:

Scenario 1: An employee has paid sick days under the employment contract, and used all of them prior to April 19, 2021.

Example: Denise has a contractual entitlement to ten fully paid sick days each calendar year. These are the only days of paid leave available to her under her contract of employment. There are no conditions attached to the contractual entitlements that are more onerous than those required in the ESA. Denise had a back injury in February and used all ten of her paid sick days.

Denise had no paid leave available to her under her employment contract on April 19, 2021. She is therefore entitled to three days of paid infectious disease emergency leave.

Scenario 2: An employee has paid leave under the employment contract, and has some of it left on April 19, 2021.

Example 1: Anthony has a contractual entitlement to five fully paid sick days each calendar year. This is the only paid leave available under his contract of employment. There are no conditions attached to the contractual entitlements that are more onerous than those required in the ESA. He took three of the five paid sick days in January 2021. On April 19, 2021, Anthony had two paid days remaining under his contract.

Anthony is therefore entitled to one (3 ESA days minus 2 contractual days remaining) paid infectious disease emergency leave day under the ESA. This is because on April 19, 2021, Anthony had two employer-paid days of leave available under his contract that could be taken for one or more of the reasons for which paid infectious disease emergency leave can be taken and which meet the minimum pay requirements.

Example 2: Quim has a contractual entitlement to five fully paid sick days each calendar year. This is the only paid leave available under his contract of employment. There are no conditions attached to the contractual entitlements that are more onerous than those required in the ESA. Quim took two of the five days in February 2021. On April 19, 2021, Quim had three paid days remaining under the contract.

Quim is therefore entitled to zero (3 ESA days minus 3 contractual days remaining) paid infectious disease emergency leave days under the ESA. This is because on April 19, 2021, Quim had three employer-paid days of leave available under his contract that could be taken for one or more of the reasons for which paid infectious disease emergency leave can be taken and which meet the minimum pay requirements.

Example 3: There is no requirement that the paid leave under the employment contract be for a full workday in order to meet the four criteria. For example, Alexander has a contractual entitlement to four hours of paid leave to receive a COVID‑19 vaccine. This is the only paid leave available under his employment contract. There are no conditions attached to the contractual entitlement that are more onerous than those required in the ESA.

Alexander did not use the leave before April 19, 2021. On April 19, 2021, Alexander had four hours of leave remaining under the contract.

Alexander is therefore entitled to three days less four hours of paid infectious disease emergency leave under the ESA. This is because on April 19, 2021, he had four hours of employer-paid leave available under his contract that could be taken for one or more of the reasons for which paid infectious disease emergency leave can be taken and which meet the minimum pay requirements.

Scenario 3 : An employee is hired after April 19, 2021

Example: Kristy is hired on May 1, 2021 and has five paid family days under her employment contract. This is the only paid leave available under her contract of employment. There are no conditions attached to the contractual entitlements that are more onerous than those required in the ESA. Given that she did not have any contractual entitlement to paid leave on April 19, 2021 - since she was not employed by the employer at that time - she is entitled to three days of paid infectious disease emergency leave.

Scenario 4 : An employee’s contractual paid leave bank “refreshes” after April 19, 2021

Example: Nicholos has a contractual entitlement to five fully paid sick days each year. This is the only paid leave available under his contract of employment. There are no conditions attached to the contractual entitlements that are more onerous than those required in the ESA. These paid sick days are renewed every year on Nicholos’s employment anniversary date, which is May 1st. On April 19, 2021 Nicholos had used up all his paid sick days under his contract of employment. As such, he is entitled to three paid infectious disease emergency leave. This is the case even though his paid contractual sick day bank will be renewed on May 1, 2021.

* * *

It is the employee’s decision as to whether to claim paid infectious disease emergency leave

A question may arise in the situation where an employee has entitlements to both contractual leave and paid infectious disease emergency leave and the employee is absent for a reason that entitles the employee to the leave under both the contract and the ESA. The question is which entitlement - the contractual leave entitlement or the statutory leave entitlement – must be taken first. (This may be relevant for several reasons, including for purposes of tracking the employee’s remaining contractual and statutory entitlements and because employers are eligible to be reimbursed only for payments made for statutory paid infectious disease emergency leave).

The ESA does not dictate which entitlement must be taken first in this situation. As is the case with other statutory leaves, it is the policy of the Employment Standards program that employees decide whether or not to claim a statutory paid infectious disease emergency leave when the employee is absent for a reason that qualifies for that leave.

* * *

Whether taking a paid infectious disease emergency leave day draws down the employee’s contractual entitlement

Another question that may arise is whether an employee taking a paid infectious disease emergency leave under the ESA affects the employee’s contractual entitlements. In general, whether or not a contractual entitlement is also simultaneously reduced when an employee takes paid infectious disease emergency leave under the ESA is not a matter for the ES Program; it is a contractual matter and will depend on the contractual arrangement. There is, however, one exception that applies in the situation where an employee has entitlements to both contractual leave and statutory paid infectious disease emergency leave and the employee is absent for a reason that entitles the employee to take a leave under both. In that situation, where the employee claims the absence as statutory paid infectious disease emergency leave, it is the policy of the Employment Standards program that the employer cannot simultaneously reduce a contractual leave that met the qualifying conditions in ss. 50.1(1.4) that was used to reduce any of the employee’s three-day entitlement to statutory paid infectious disease emergency leave.

(The reason that the exception applies in this situation is that unlike other leaves of absence under the ESA, an employee’s statutory entitlement to paid infectious disease emergency is dependent on whether the employee has certain contractual entitlements. Because contractual leaves that meet the qualifying conditions in ss. 50.1(1.4) are incorporated into the statutory scheme and are relevant for establishing the employee’s statutory entitlement (i.e. how many days of statutory paid infectious disease emergency leave an employee is entitled to), how they are administered is considered a matter for the Employment Standards program to the extent that the employer cannot reduce the contractual leave when an employee takes a statutory paid infectious disease emergency leave. If a reduction of the contractual leave was permitted in this situation, it would result in an employee who chooses to take, for example, one day of their statutory entitlement before taking their contractual entitlement losing two days of leave entitlement for the absence (i.e. the statutory day and a contractual day).

An employee who chooses to take their statutory entitlement before their contractual entitlement will lose one of their 3 days of leave.

* * *

Leave deemed to be taken in entire days – ss. 50.1(1.6)

Employees may not need an entire work day to attend to the event that gave rise to the paid infectious disease emergency leave and might only take part of a day off work. Subsection (1.6) allows an employer in this situation to count a part-day off work as an entire day of paid infectious disease emergency leave for the purpose of counting the absence against the statutory allotment of days. This is the only purpose for which the employer can deem the part day off work as an entire day’s leave. The employer cannot deem the employee not to have worked at all on the day. Where an employee worked a partial day and took a part-day of paid infectious disease emergency leave, the employee is entitled to be paid the earnings for the time that was actually worked that day (in addition to the infectious disease emergency leave pay). As well, the hours that were worked will be counted for the purposes of, among other things, determining whether the relevant overtime threshold has been reached, whether the limits on, for example, the daily and weekly hours of work have been reached, and whether the daily, weekly/bi-weekly and in-between shifts rest requirements have been met.

For clarity, this provision does not require employees to take paid infectious disease emergency leave in full day periods. It simply allows an employer to reduce the employee's statutory paid infectious disease emergency leave entitlement by a day if an employee is on paid infectious disease emergency leave for only part of a day. (Note that pursuant to subsection 50.1 (1.8), an employee may elect to “opt out” of paid infectious disease emergency leave for a particular absence and can instead take the leave as unpaid infectious disease emergency.)

Note that this provision allows the employer to attribute one day's leave to a part day of absence. It does not require the employer to do so.

For example, an employee left work early to get vaccinated against COVID‑19. The employee worked a five-hour day rather than her usual eight hour shift and takes paid infectious disease emergency leave. In that case, the employer may consider the employee to have used up one of her statutory days of infectious disease emergency leave and the employee would be paid infectious disease emergency leave pay for the three hours of leave in accordance with the formula set out in ss. (1.11)-(1.13) plus her earnings for the five hours that she actually worked.

Just because an employer may consider an employee to have used one day of paid infectious disease emergency leave due to a part day of absence does not mean that the employee then has the right to take the entire day off if the triggering event did not last the entire day. For example, an employee's shift is from 9 a.m. to 5 p.m. The employee has an appointment to get a vaccine at 9 a.m. at a location one hour away from the workplace. The employee claims the absence as paid infectious disease emergency leave. The employer is entitled to reduce the employee's paid infectious disease emergency leave entitlement by one day, but if the employee does not experience any immediate side-effects from the vaccine, the employee must return to work after the appointment is over. Employees have the right to be away from work under the infectious disease emergency leave provisions of the ESA 2000 only for as long as the event that triggered the entitlement lasts. After the triggering event is over, the employee's normal obligations to attend at work are resumed.

In addition, employers cannot prohibit employees who took a part day of leave from returning to work for the remainder of their shift. This is because of, among other reasons, the employer's obligation to reinstate the employee at the end of the leave in ESA Part XIV and the prohibition against penalizing employees for having taken a leave in ESA Part XVIII, s. 74.

For instance, an employer counts a three-hour paid infectious disease emergency leave as a full day's leave for employee A but not for employee B, who also takes a three-hour leave because the employer considers employee B to be a better worker than employee A. Although this might be unfair as between employee A and B, it would not be a violation of the ESA 2000, as it would not be a reprisal for exercising a right under the ESA 2000.

If, on the other hand, the motivation for the differential treatment was that employee A frequently took ESA leaves such as sick leave, family responsibility leave or paid infectious disease emergency leave of only a few hours, and the employer assigned a full day's absence to these short leaves as a way to ensure employee A used up all of their statutory entitlement as soon as possible because the employer found it inconvenient for the employee to be away for many short periods of time, that would be an unlawful reprisal.

Paid days first – ss. 50.1(1.7); Same, election re: unpaid days – ss. 50.1(1.8)

Together, these two subsections provide that where an employee who is entitled to paid infectious disease emergency leave takes infectious disease emergency leave between April 29, 2021 and March 31, 2023, that leave is treated as paid infectious disease emergency leave rather than unpaid infectious disease emergency leave. (See ss. (1.9) and (1.10) below for the rule that applies to infectious disease emergency leaves taken between April 19, 2021 and April 28, 2021, inclusive.)

In effect, these provisions provide that the “default” is that the paid infectious disease emergency leave days are used (and the employer is required to pay the employee infectious disease emergency leave pay in accordance with ss. (1.11)-(1.13)) before unpaid infectious disease emergency leave is taken. There is no requirement for an employee to request payment for the first days’ leave; the entitlement to infectious disease emergency leave pay flows automatically from the ESA.

The only exception is where the employee provides the employer with written notice that the employee elects to take the leave as unpaid infectious disease emergency leave. The written notice has to be provided to the employer before the end of the pay period in which the leave was taken in order for the leave to be considered unpaid. (An employee may choose to take unpaid infectious disease emergency leave rather than a paid leave because, for example, receiving paid infectious disease emergency leave may affect an employee’s eligibility for, or amount of, benefits under federal programs.)

An employee does not lose their paid infectious disease emergency leave entitlements if they choose to treat the absence as unpaid infectious disease emergency leave; the entitlements are just deferred to the next infectious disease emergency leave absence.

Same – ss. 50.1(1.9), (1.10)

(1.9) If, between April 19, 2021 and the day the COVID‑19 Putting Workers First Act, 2021 receives Royal Assent, an employee takes unpaid leave under subsection (1.1) in circumstances for which the employee would also be entitled to take a leave under subsection (1.2), the employee may elect to be paid for that leave only if the employee advises the employer in writing before the day that is 14 days after the COVID‑19 Putting Workers First Act, 2021 receives Royal Assent, that the employee has elected to take the leave as paid leave, and the employee is deemed to have taken the leave under subsection (1.2).

(1.10) Despite subsection 11 (1), if an employee elects to take paid leave under subsection (1.9), the employer shall pay the employee the amount to which the employee is entitled no later than the pay day for the pay period in which the employee made the election.

The COVID‑19 Putting Workers First Act, 2021 received Royal Assent and amended the ESA to introduce paid infectious disease emergency leave on April 29, 2021. However, ss. 50.1(5.2) provides that an employee’s entitlement to paid infectious disease emergency leave is deemed to have started on April 19, 2021.

Subsection 50.1(1.9) provides that employees who took an unpaid infectious disease emergency leave between April 19, 2021 and April 28, 2021, inclusive, for a reason for which paid leave can be taken as per ss. (1.2), can retroactively elect to take those unpaid days as paid infectious disease emergency leave instead (if they have an entitlement to paid infectious disease emergency leave entitlements as per ss. (1.3)).

To make this election, employees must have advised their employer in writing no later than the day before the day that is 14 days after April 29, 2021 – i.e. no later than May 12, 2021.

Subsection 50.1(1.10) provides that where an employee makes an election under ss. 50.1(1.9), the employer shall pay the employee the infectious disease emergency leave pay the employee is entitled to receive no later than the pay day for the pay period in which the employee made the election. This “deadline” for payment overrides the deadline for payment of wages in ss. 11(1) of the ESA, which may have been missed (through no fault of the employer) due to the retroactive nature of the employee’s election.

Paid leave – ss. 50.1(1.11)

(1.11) Subject to subsections (1.12) and (1.13), if an employee takes paid leave under subsection (1.2), the employer shall pay the employee the lesser of $200 per day and,

either,
1. the wages the employee would have earned had they not taken the leave, or
3. if the employee receives performance-related wages, including commissions or a piece work rate, the greater of the employee’s hourly rate, if any, and the minimum wage that would have applied to the employee for the number of hours the employee would have worked had they not taken the leave; or
if some other manner of calculation is prescribed, the amount determined using that manner of calculation.

This subsection sets out the manner of calculating the amount of infectious disease emergency leave pay an employer must pay an employee who takes paid infectious disease emergency leave.

Subject to ss 50.1(1.12) and (1.13), the employer must pay the employee the lesser of $200 and either:

the wages the employee would have earned had the employee not taken paid infectious disease emergency leave, and
if the employee receives performance-related wages, such as commissions or a piece work rate, the greater of the employee’s hourly rate, if the employee has one, and the minimum wage that would have applied to the employee for the number of hours the employee would have worked had they not taken the leave

At the time of writing, no other manner of calculating infectious disease emergency leave pay has been prescribed.

If an employee takes any part of a day as paid infectious disease emergency leave and the employer deems the employee to have taken one day of leave in accordance with ss 50.1(1.6), the employer is required to pay infectious disease emergency leave pay for the time taken as infectious disease emergency leave (i.e., when the employee is absent) plus any wages the employee earns while working during the day in question.

This provision is read subject to ss 50.1(1.12) and (1.13). Per ss 50.1(1.12), overtime pay and shift premium amounts are not to be included in infectious disease emergency leave pay even if the employee "would have earned" these if the employee worked. Subsection 50.1(1.13) provides that if a day of paid infectious disease emergency leave falls on a public holiday, the employee is not entitled to premium pay for any paid infectious disease emergency leave taken.

Depending on how much leave is taken during a work day, infectious disease emergency leave pay for a work day can be any amount from less than a single hour’s pay to an entire day of wages. But in no case does it exceed $200.

Calculating Infectious Disease Emergency Leave Pay

In order to determine how much infectious disease emergency leave pay an employee is entitled to, two things need to be established:

How much paid infectious disease emergency leave was taken, or the number of hours in a "work day" minus the number of hours worked, if any, and
Whether the formula in subclause (i) or (ii) will be used:
1. The wages the employee would have earned had they not taken the leave, or
2. If the employee receives performance-related wages in whole or in part, the employee’s hourly rate – if there is one – or the applicable minimum wage if there isn’t.

1. How much Paid Infectious Disease Emergency Leave Taken

Determining length of employee’s work day on the day leave was taken:

If the employee:

works a regular work day, with set hours, this is the length of the day for the purpose of calculating infectious disease emergency leave pay.
Is scheduled to work a particular number of hours on the day on which infectious disease emergency leave is taken, the length of the work day will be what was scheduled, even if the employee regularly works a set number of hours that is different from the scheduled shift.

The situation may arise when an employee may be required to report to work at a particular time, but does not have a shift or work period of a specified length. In that case, when assessing the amount of wages an employee would have earned had they not taken paid infectious disease emergency leave in order to determine the amount of infectious disease emergency leave pay owing, the employer must make a reasonable estimate of how long the employee would have worked on that day. For example, it could be reasonable for an employer to take an average of the number of hours worked by all the employees in the same position as the employee who took paid infectious disease emergency leave on the day, or if another employee was called in to replace the employee on the day, it could be reasonable to refer to the length of that employee's shift.

When an employment standards officer is investigating a claim from an employee who believes they received less infectious disease emergency leave pay than the ESA requires (perhaps because the employer took the position that the business was not busy on that particular day and the employer intended to send the employee home early) the officer makes a determination on whether the amount paid by the employer was reasonable. Evidence may include direct evidence from other employees, receipts, point of sale records, customer or production logs, or the staff schedule from the day in question. If the employer has a staff rotation policy and employees are sent home early in a particular order when the business is not busy, was the employee the next person on the list?

Determining how much paid infectious disease emergency leave was taken:

The length of infectious disease emergency leave taken on a single day is calculated by deducting the number of hours actually worked, if any, from the total number of hours in the work day. For example, if it is determined that the employee was scheduled to work nine hours on the day, and they took five hours of paid infectious disease emergency leave to get a COVID‑19 vaccine, they would be entitled five hours of infectious disease emergency leave pay (plus the wages they earned during the four hours at work). If the same employee missed the entire day, they would be entitled to nine hours of infectious disease emergency leave pay.

2. Whether the formula in subclause (i) or (ii) will be used

Here are examples of how the formula in subclause (i) applies in different scenarios:

a. Hourly Wage (Non-Salaried Employees)

If the employee is paid by an hourly wage, the amount of infectious disease emergency leave pay is the lesser of $200 and the amount obtained by multiplying the number of hours of infectious disease emergency leave x the hourly rate.

Example 1: Employee with a single rate of pay

Employee's wage rate is $17.25 per hour.
Employee normally works 8.5 hours in a day. The employee left work to take paid infectious disease emergency leave after working 1.5 hours

Entitlement:

Employee normally works 8.5 hours per day, but worked 1.5 hours and took paid infectious disease emergency leave for the rest of the day = 7 hours of paid infectious disease emergency leave
Infectious Disease Emergency Leave Pay: 7 hours x $17.25 = $120.75
Note that the employee is also entitled to wages they earned while working on the same day = 1.5 hours x $17.25)
Note: if the employee’s infectious disease emergency leave pay had resulted an amount greater than $200.00, the employee would be entitled to receive $200.00 and not the calculated amount. This $200.00 maximum applies only to the infectious disease emergency leave pay, not to the employee’s total wages for the day.

Example 2: Employee with more than one rate of pay

Employee is paid $16.00/hour for Job "A" and $17.50/hour for Job "B"
Employee is scheduled to work 10 hours: first five hours on Job "A" and second five hours on Job "B"

Entitlement:

The employee worked for the first three hours doing Job A, and took the rest of the day as paid infectious disease emergency leave: 10 hours – 3 hours = 7 hours
Of the 7 hours of infectious disease emergency leave, 2 were Job A and 5 were Job B
Infectious Disease Emergency Leave Pay: (2 hours x $16.00 = $32.00) + (5 hours x $17.50 = $87.50) = $119.50
Note that the employee is also entitled to wages they earned while working: 3 hours x $16.00 = $48.00.
Note: if the employee’s infectious disease emergency leave pay had resulted an amount greater than $200.00, the employee would be entitled to receive $200.00 and not the calculated amount. This $200.00 maximum applies only to the infectious disease emergency leave pay, not to the employee’s total wages for the day.

Example 3: $200 Limit Applies

Employee’s wage rate is $30/hour
Employee is scheduled to work 10 hours. The employee took the entire day as paid infectious disease emergency leave

Entitlement:

The employee is entitled to the lesser of $200 and the wages the employee would have earned had the employee not taken paid infectious disease emergency leave, which is $300 ($30/hour x 10 hours)
Infectious Disease Emergency Leave Pay: $200

b. Salaried employees

If the employee is paid by salary and has a regular number of days within a pay period and regular hours, the amount of infectious disease emergency leave pay is:

If the employee took a full day or shift as infectious disease emergency leave, the lesser of $200 and employee's daily rate (salary ÷ number of days in a pay period)
If the employee took part of a day or shift as infectious disease emergency leave, the lesser of $200 and the employee's hourly rate (salary ÷ number of hours in a pay period) x number of hours of infectious disease emergency leave

This is, in effect, salary continuance. If an employer pays an employee with a fixed salary the normal amount of pay for a week with a day of full or partial infectious disease emergency leave in it, the infectious disease emergency leave pay provisions of the ESA 2000 will be satisfied.

Examples: Salaried employees with regular number of days and hours within pay period

Example 1:

An employee is paid $1500.00 per bi-weekly pay period and works a five-day week. One day of paid infectious disease emergency leave is taken. Infectious disease emergency leave pay = $1500.00 ÷ 10 = $150.00.

Note: if the employee’s infectious disease emergency leave pay had resulted an amount greater than $200.00, the employee would be entitled to receive $200.00 and not the calculated amount.

Example 2:

An employee is paid $1500.00 per bi-weekly pay period and works a 40 hour week. The employee takes four hours of paid infectious disease emergency leave. Hourly rate: $1500.00 ÷ 80 = $18.75/hour. Infectious disease emergency leave pay: $18.75 x 4 = $75.00. Note that the employee is also entitled to wages earned for the part of the day that the employee worked.

Note: if the employee’s infectious disease emergency leave pay had resulted an amount greater than $200.00, the employee would be entitled to receive $200.00 and not the calculated amount. This $200.00 maximum applies only to the infectious disease emergency leave pay, not to the employee’s total wages for the day.

Impact of top-ups on the Infectious Disease Emergency Leave Pay calculations

A situation may arise where the employee receives a "top-up" or subsidy from a third party in addition to an hourly rate of pay or salary. For example, an employee who works in a daycare centre may be paid $16.00/hour plus $2.00/hour as part of a municipal or provincial government initiative to raise wages for workers in the sector. Depending on how the subsidy is structured, it may or may not be considered wages the employee would have earned for the purposes of infectious disease emergency leave pay. If the employee is paid the subsidy directly by an entity other than the employer, then the subsidy may not be considered wages that the employee would have earned because they are not wages being paid by the employer. If, however, the subsidy and the hourly rate are a term of the contract of employment with the employer (oral or written, express or implied), then the subsidy amount must be included in the calculation of infectious disease emergency leave pay.

B. Subclause (ii) – Where an employee earns performance-related wages

The amount of infectious disease emergency leave pay for an employee paid fully or partly by a system of wage calculation related to performance is the lesser of $200 and the greater of the employee's hourly rate, if any and the minimum wage that would have applied to the employee.

"Performance-related wages" can include, for example, commission only, commission plus an hourly wage, piece work, or compensation as a flat-rate mechanic.

An "hourly rate" refers to an hourly rate set by an employment contract.

Here are examples of how the formula in subclause (ii) applies in different scenarios:

Example 1: Employee earns an hourly rate plus commission

Employee earns $16.00/hour plus 2% commission on sales,
Employee takes 6.5 hours of paid infectious disease emergency leave
Infectious Disease Emergency Leave Pay: $16.00 x 6.5 = $104.00
Note that the employee is also entitled to his/her hourly wage for any hours worked + commission earned while working that day, if any
Note: if the employee’s infectious disease emergency leave pay had resulted an amount greater than $200.00, the employee would be entitled to receive $200.00 and not the calculated amount. This $200.00 maximum applies only to the infectious disease emergency leave pay, not to the employee’s total wages for the day.

Example 2: Employee paid entirely by commission

Employee earns 10% commission on all sales
Employee is scheduled to work eight hours, works five hours and makes sales of $500.00 and then takes three hours of paid infectious disease emergency leave
Infectious Disease Emergency Leave Pay: Applicable minimum wage rate x 3
Note that the employee is also entitled to the 10% commission on the $500.00 sales that the employee made that day
Note: if the employee’s infectious disease emergency leave pay had resulted an amount greater than $200.00, the employee would be entitled to receive $200.00 and not the calculated amount. This $200.00 maximum applies only to the infectious disease emergency leave pay, not to the employee’s total wages for the day.

Example 3: Employee is a homeworker paid by piece work

Employee earns $3.50 per phone call answered
Employee is scheduled to work 8.5 hours, works two hours, answers nine phone calls, and takes 6.5 hours of paid infectious disease emergency leave
Infectious Disease Emergency Leave Pay: Applicable minimum wage x 6.5
Note that the employee is also entitled to $3.50 x 9 for actual work performed on the day
Note: if the employee’s infectious disease emergency leave pay had resulted an amount greater than $200.00, the employee would be entitled to receive $200.00 and not the calculated amount. This $200.00 maximum applies only to the infectious disease emergency leave pay, not to the employee’s total wages for the day.

Example 4: Employee is a Flat Rate Mechanic

Employee is scheduled to work nine hours
Employee is paid a flat book rate of $16.00/hour for tune ups (calculated to take two hours to complete). Employee completes two tune ups in three hours and takes the rest of the shift as paid infectious disease emergency leave.
Infectious Disease Emergency Leave Pay: Applicable minimum wage x 6
Note that the employee is also entitled to $16.00 x 4 = $64.00, for actual work performed on the day
Note: if the employee’s infectious disease emergency leave pay had resulted an amount greater than $200.00, the employee would be entitled to receive $200.00 and not the calculated amount. This $200.00 maximum applies only to the infectious disease emergency leave pay, not to the employee’s total wages for the day

Paid leave where higher rate of wages – ss. 50.1(1.12)

This subsection excludes overtime pay and shift premiums (for example, an extra amount paid for working evenings or weekends) from inclusion when calculating infectious disease emergency leave pay. As such, an employee would be entitled to be paid for hours of paid infectious disease emergency leave using their regular rate of pay, and not, for example 1.5 times their regular rate per the overtime provisions of the ESA if the leave was taken during a time the employee would have earned overtime pay had the leave not been taken.

Here are some examples illustrating the application of this subsection;

Example 1: Employee was scheduled to work overtime hours on a day when paid infectious disease emergency leave was taken

Employee is paid $16.00/hour, has already worked 40 hours in a work week and is scheduled to work an additional shift of eight hours on a Saturday.
Employee does not work any of the scheduled shift and takes paid infectious disease emergency leave.
Employee would have earned wages for eight hours of work had the leave not been taken (4 of which would have exceeded the overtime threshold of 44 in a week)
Infectious Disease Emergency Leave Pay: 8 hours x $16.00/hour = $128.00
Note: if the employee’s infectious disease emergency leave pay had resulted an amount greater than $200.00, the employee would be entitled to receive $200.00 and not the calculated amount.

Similarly, if an employee is scheduled to work hours that would normally attract a shift premium, if the employee misses all or some of the shift to take paid infectious disease emergency leave, then infectious disease emergency leave pay will be calculated on the employee's base rate and would not include the shift premium.

Example 2: Employee entitled to shift premium pay on a day where paid infectious disease emergency leave was taken

Employee is paid $15.50/hour, plus an additional $2.50/hour for night shifts.
Employee is scheduled to work a midnight to 8:00am shift, but takes a paid infectious disease emergency leave for the entire day.
Employee would have earned wages for eight hours of work had the leave not been taken.
Infectious Disease Emergency Leave Pay: 8 hours x $15.50 = $124.00
Note: if the employee’s infectious disease emergency leave pay had resulted an amount greater than $200.00, the employee would be entitled to receive $200.00 and not the calculated amount.

Paid leave on public holiday – ss. 50.1(1.13)

Under ESA Part X, Public Holidays, employees who agree to, or are required to, work on a public holiday may be entitled to receive premium pay of at least one and one half times their regular rate for hours worked on that day. The effect of this subsection is that – despite the entitlement in s. 50(1.11) to be paid "the wages the employee would have earned had they not taken the leave" – the employee is not entitled to any premium pay that the employee would have earned by working on the public holiday had the leave not been taken.

Note that in certain situations, per ESA Part X, Public Holidays, the onus is on the employee to prove that the employee had "reasonable cause" for not working all or part of a scheduled shift either on a public holiday, or the "first and last" shifts before or after a public holiday. Also note that it is Program policy that if an employee takes paid infectious disease emergency leave, this will constitute reasonable cause for the purposes of Part X. Note that s. 50.1(4.1) prohibits an employer from requiring that the employee provide a certificate from a qualified health practitioner as evidence of an entitlement to paid infectious disease emergency leave. Therefore, an employer can only require an employee to provide other evidence "reasonable in the circumstances at a time that is reasonable in the circumstances”, per s. 50.1(4.1).

Example:

An employee was scheduled to work on a public holiday for ten hours and was going to be paid public holiday pay plus premium pay for the ten hours. The employee worked for six hours and took four hours as paid infectious disease emergency leave. The employee earns the ”general” minimum wage.

Entitlements:

Entitlements from the Public Holidays part of the ESA:
Public holiday pay calculated in accordance with the public holiday rules of the ESA
Premium pay for the hours worked on the public holiday in accordance with the public holiday rules of the ESA (”general” minimum wage x 1.5 x 6 hours)
Entitlements from the Paid Infectious Disease Emergency Leave part of the ESA:
No additional amount as infectious disease emergency leave pay

Note that per ss. 50.1(1.13) the employee is not entitled to premium pay for the four hours taken as paid infectious disease emergency leave.

Explanation:

Infectious disease emergency leave pay generally provides that employees do not lose wages for the time they are not working when on paid infectious disease emergency leave, up to a maximum of $200 per day.

In the case of this employee who takes paid infectious disease emergency leave on a public holiday where the employee was scheduled to work and to earn premium pay plus public holiday pay, the employee’s entitlements under the public holiday rules in the Act already provide that the employee earns the amount the employee would have earned (except for premium pay as provided for in ss. 50.1(1.13)) had the employee not taken the leave. As such, in this situation, the employee is not entitled to receive any amount in infectious disease emergency leave pay over and above the employee’s public holiday entitlements.

Note: The public holiday pay and premium pay that the employee is entitled to under the Act’s public holiday rules is not infectious disease emergency leave pay. This is important because it means that the amount the employee is entitled to receive for the public holiday is not subject to the $200 daily infectious disease emergency leave pay maximum. Similarly, an employer is not eligible to be reimbursed this amount through the employer reimbursement scheme (since the amount the employer paid is what the employer owed the employee under the Act’s public holiday rules, regardless of the leave of absence).

Advising Employer – s. 50.1(2), (3)

An employee does not lose their right to declared emergency leave or infectious disease emergency leave if the employee fails to comply with ss. 50.1(2) or (3). An employee's entitlement to the leave arises where an employee meets the eligibility criteria of the leave. It is the Program’s position that the failure to advise the employer before or as soon as possible after the leave begins does not negate that entitlement. This approach has been affirmed in a grievance arbitration decision by the Ontario Labour Relations Board in the context of the former personal emergency leave, which used identical language to subsections (2) and (4) and which had similarly-structured entitlement provisions to those found in these two leaves – see International Brotherhood of Electrical Workers, Local 115 v The State Group Inc., 2019 CanLII 22129 (ON LRB). In that decision, the Vice-Chair found that notice to the employer is not a prerequisite to exercising the right to the leave. Note that this approach is also consistent with the Program's long-standing policy in the pregnancy and parental leave context, where the structure of the entitlement and notice provisions are also similar to these. See ESA Part XIV, s. 46(4) and s. 48(4).

An issue has arisen as to whether an employer can penalize an employee for failing to give advance notice that the employee will be absent from work (as may be required under an employer policy), where the time off is a declared emergency leave or infectious disease emergency leave under the ESA 2000. Section 50.1(1.1) and (1.2) describes the employee’s eligibility for these leaves. Section 50.1(2) requires the employee taking one of these leaves to advise the employer that the employee is taking the leave, and s. 50.1(3) provides that "if the employee begins the leave before advising the employer, the employee shall advise the employer of the leave as soon as possible after beginning it." It is clear from s. 50.1(3) that the ESA 2000 contemplates situations where the employee would be unable to advise the employer in advance of commencing declared emergency leave or infectious disease emergency leave. Part of the leave entitlement under the ESA 2000 is the right to take the leave even if advance notice cannot be given, with the proviso that the employee must advise the employer of the leave as soon as possible after beginning it. The failure to give notice in advance of taking leave, when it would have been possible for the employee to do so, can be the subject of disciplinary action by the employer without violating section 74. However, the following points should be considered:

The employee's failure to give advance notice would not be a lawful basis on which to deprive the employee of the right to take the leave if the qualifying conditions in subsections 50.1(1.1) or (1.2) have been met. An employer could not, for example, take the position that failure to give advance notice when it would have been possible for the employee to do so will result in the time taken off not be considered as declared emergency leave or infectious disease emergency leave.
Any discipline for failing to provide notice in situations where such notice is required under section 50.1(2) (i.e., where section 50.1(3) does not apply) would have to be appropriately linked to the failure to give advance notice and must not, in effect penalize the employee for exercising the right to leave. The motive for any discipline that the employer does impose must clearly be the employee’s failure to give advance notice and not the taking of the leave itself.
In addition, an employer would be able to impose discipline if an employee fails to provide any notice of the leave (before or after the leave), or if the employee provides notice of the leave so late that one wouldn’t reasonably be able to say that it falls within s. 50.1(3). However, the employer’s disciplinary action would have to be appropriate, and in no way a penalty or reprisal for the employee having taken the leave, but only for the failure to give notice.

Employees who were deemed to be on infectious disease emergency leave during the defined COVID-19 period (March 1, 2020 to July 30, 2022) by virtue of ss. 4(2) of O. Reg. 228/20 were , pursuant to ss. 4(4) of that regulation, exempt from the requirement to provide notice of the leave. See the discussion in O. Reg. 228/20. Note that where an employee qualifies for both paid and unpaid infectious disease emergency leave, the employee does not need to specify in the notice whether they are taking paid or unpaid infectious disease emergency leave. Per ss. (1.7), where an employee who was entitled to paid infectious disease emergency leave took infectious disease emergency leave between April 29, 2021 and March 31, 2023 , that leave is treated as paid infectious disease emergency leave rather than unpaid infectious disease emergency leave. This is subject to ss. 50.1(1.8) that allows the employee to “opt out” of paid infectious disease emergency leave for a particular absence by providing the required written notice to the employer before the end of the pay period in which the leave was taken.

Evidence of entitlement, Declared Emergency – s. 50.1(4)

Employers can require an employee who takes declared emergency leave to provide proof that the employee is or was entitled to take declared emergency leave. The employer can require an employee to provide evidence that is "reasonable in the circumstances" that the employee is or was entitled to take the leave at a time that is "reasonable in the circumstances."

Depending on the circumstances, such evidence could include:

A note from an employee's daycare provider indicating that the childcare centre was closed because of a declared emergency,
A copy of an order that applies to the employee made under the HPPA,
A copy of an order that applies to the employee made under section 7.0.2 of the EMCPA.

Evidence of Entitlement, Infectious Disease Emergency – s. 50.1(4.1)

Employers can require an employee who takes unpaid or paid infectious disease emergency leave to provide proof that the employee is or was entitled to take the leave. The employer can require an employee to provide evidence that is "reasonable in the circumstances" that the employee is or was entitled to take the leave at a time that is "reasonable in the circumstances."

The employer cannot require an employee to provide a certificate from a qualified health practitioner [which is defined in ss. 50.1(1) as a person who is qualified to practise as a physician or nurse under the laws of the jurisdiction in which care or treatment is provided to the employee or an individual described in subsection (8)].

Depending on the circumstances, evidence reasonable in the circumstances could include:

travel documentation showing that the employee had travelled to a country for which quarantine or isolation is being advised or required.
a copy of the information issued to the public by a public health official advising of quarantine or isolation (for example, a print out, screen shot or recording of the information)
a copy of an order to isolate that was issued to the employee under s. 22 or s. 35 of the Health Protection and Promotion Act
an email from a pharmacy or from a public health department indicating the employee’s appointment date and time to receive a COVID‑19 vaccination.

For example, if an employee is in isolation or in quarantine due to the designated infectious disease, it will not be reasonable to require the employee to provide the evidence during the quarantine or isolation period if the employee would have to leave home to obtain the evidence.

However, if the employee has electronic evidence that can be sent from home, it may be reasonable to require the employee to send it during the isolation or quarantine period.

Where an employee takes unpaid and/or paid infectious disease emergency leave to provide care or assistance to an individual listed in subsection (8), the employer cannot require the employee to give details of the relative’s medical condition. The employer is prohibited from requiring the employee to provide a medical note with respect to the relative’s illness. The employer may only require the employee to disclose the name of the relative, the relative’s relationship to the employee, and a statement that the absence was required because of the relative’s illness and that there is a connection between the illness and the designated infectious disease.

Note that the evidence provisions in other ESA leaves do not explicitly state that the “reasonable in the circumstances” standard applies to the timeframe in which evidence may be required (i.e., the provisions in those other leaves only state that employers can require employees to “provide evidence reasonable in the circumstances” – see for example, ss. 50(6), 50.0.1(7) and 50.0.2(7).) Nonetheless, the Program has always considered – and continues to consider – the phrase “reasonable in the circumstances” in those other leaves to apply both to the evidence itself as well as to the timeframe within which it is being required. The explicit inclusion of the phrase “reasonable in the circumstances” with respect to the timeframe in infectious disease emergency leave is to clearly signal to employers that what is reasonable in the context of an infectious disease emergency might differ significantly from what would be a reasonable timeframe within which to require the production of evidence from an employee in other contexts and does not change the interpretation of the evidence provisions in other leaves.

Limit, Declared Emergency – ss. 50.1(5), (6)

50.1(5) An employee is entitled to take a leave under clause (1.1)(a) for as long as he or she is not performing the duties of his or her position because of an emergency declared under section 7.0.1 of the Emergency Management and Civil Protection Act and a reason referred to in subclauses (1.1) (a)(i) to (iv), but, subject to subsection (6), the entitlement ends on the day the emergency is terminated or disallowed.

(6) If an employee took leave because he or she was not performing the duties of his or her position because of an emergency that has been terminated or disallowed and because of an order made under subsection 7.0.2(4) of the Emergency Management and Civil Protection Act and the order is extended under subsection 7.0.8 (4) of that Act, the employee's entitlement to leave continues during the period of the extension if he or she is not performing the duties of his or her position because of the order.

Section 50.1(5) means that, subject to ss. (6), an employee is entitled to declared emergency leave only for as long as the employee meets the eligibility conditions (i.e., the employee is not performing the duties of his or her position because of the declared emergency and because of one of the reasons set out in section 50.1(a)). This means, among other things, that once a declared emergency has been terminated or disallowed, subject to s. 50.1(6), the entitlement to declared emergency leave will also end.

Pursuant to ss. (6), the right to take declared emergency leave continues past the end date of the declared emergency if an employee was on declared emergency leave because of an order under section 7.0.2(4) of the EMCPA on July 24, 2020. As such, entitlement to declared emergency leave because of the first COVID‑19 declared emergency ended on July 24, 2020. Note, however, that employees may have had entitlements to other leaves for COVID‑19 related reasons beyond July 24, 2020, unpaid infectious disease emergency leave in particular.

The first declared emergency for COVID‑19, which began March 17, 2020, was terminated on July 24, 2020. Orders under s. 7.0.2(4) of the EMCPA related to COVID‑19 that were made during the first declared emergency for COVID‑19 ceased to be orders under theEMCPA on July 24, 2020.

As such, entitlement to declared emergency leave because of the COVID‑19 declared emergency ended on July 24, 2020. (Note, however, that employees may have entitlements to other leaves for COVID‑19 related reasons beyond July 24, 2020, infectious disease emergency leave in particular.)

The second declared emergency for COVID‑19 began January 12, 2021 and ended on February 9, 2021. Note, however, that employees may have had entitlements to other leaves for COVID‑19 related reasons beyond January 12, 2021, unpaid infectious disease emergency leave in particular.

The third declared emergency for COVID‑19 began on April 7, 2021 and ended on June 2, 2021.

The Act does not specify an upper limit on the number of days an employee may take declared emergency leave. Employees may take the leave in part days, single days, and/or consecutive days or weeks. The Act does not place any restrictions in this regard. Employees may take a leave whenever they meet the eligibility criteria.

Background information re: EMCPA

According to s. 7.0.7 of the EMCPA, a declared emergency is terminated at the end of the 14^th day following its declaration unless it is terminated on an earlier date. The declared emergency may be extended for one period of no more than 14 days by the Lieutenant Governor in Council. Then, it is the Legislative Assembly, on the recommendation of the Premier, which may extend the emergency for additional periods of up to 28 days.

The Legislative Assembly also has the power to disallow the declaration of emergency under s. 7.0.9 of the EMCPA. If the Assembly passes a resolution disallowing the declaration of emergency or the extension of one, any order made under s. 7.0.2(4) is revoked as of the day the resolution passes. Should this occur, an employee’s entitlement, subject to s. 50.1(6), to declared emergency leave would also come to an end.

Generally, and unless an employee is exercising the right to declared emergency leave under s. 50.1(1.1)(iii) (i.e. in order to provide care or assistance to an individual referred to in subsection 50.1(8)), an employee's entitlement to declared emergency will also end where the order under the EMCPA is revoked or the order under the HPPA is no longer in effect, even though an emergency may still be declared.

In other words, unless the employee is needed to provide care or assistance to an individual referred to in subs. 50.1(8), the employee’s right to leave turns on not being able to perform their duties both because there is a declared emergency under s. 7.01 of the EMCPA and because there is an order under the EMCPA or HPPA that applies to the employee. However, s. 50.1(6) deals with the situation where despite the termination or disallowance of the declared emergency, the effective period of an order that had been made under s. 7.0.2 of the EMCPA may be extended. In this situation, an employee’s leave entitlement continues during the period of extension if the employee is not performing the duties of their position because of the order.

Further, s. 141(2.3) of the ESA 2000 allows the Lieutenant Governor in Council to make a regulation to extend the entitlement of an employee to declared emergency leave beyond the day on which the entitlement would otherwise have ended if the employee is still not performing the duties of the employee’s position because of the effects of the emergency and because of a reason referred to in s. 50.1(1.1)(a). This means that the government is able to extend the declared emergency leave entitlement for employees who are, for one of the reasons specified in s. 50.1(1.1)(a), not returning to work because of the prolonged effects of the declared emergency.

Limit, Infectious Disease Emergency – ss. 50.1(5.1)

Subsection 50.1(5.1) means that employees are entitled unpaid to infectious disease emergency leave as long as they meet the eligibility criteria (i.e., they are not performing the duties of their positions because of one of the reasons set out in s. 50.1(1.1)(b) (i) to (vii), the reason is related to a designated infectious disease per O. Reg. 228/20 (initially O. Reg. 66/20 before that regulation was revoked and replaced on May 29, 2020 by O. Reg. 228/20), and there is a prescribed start date for that designated infectious disease in O. Reg. 228/20 (also initially set out in O. Reg. 66/20).

In other words, the Act does not specify an upper limit on the number of days an employee may take unpaid infectious disease emergency leave.

Employees may take the leave in part days, single days, and/or consecutive days or weeks. The Act does not place any restrictions in this regard. Employees may take a leave whenever they meet the eligibility criteria.

Note: entitlement to the leave for the reason prescribed in s. 4 of O. Reg. 228/20 applies only during the “COVID‑19 period”, which is defined to be the period beginning on March 1, 2020 and ending on July 30, 2021. See the discussion in O. Reg. 228/20.

Same, Paid Leave – ss.. 50.1(5.2); Same (5.3)

(5.2) An employee’s entitlement to paid leave under subsection (1.2) is deemed to have started on April 19, 2021 and ends on September 25, 2021 or such later date as may be prescribed.

(5.3) If the regulations so provide, an employee is entitled to paid leave under subsection (1.2) for such additional periods as may be prescribed.

These subsections provide the start and end date to paid infectious disease emergency leave entitlements.

Per these subsections, the entitlement to paid infectious disease emergency leave – which was introduced into the Act on April 29, 2021 - is retroactive and deemed to have started on April 19, 2021. The entitlement ends on September 25, 2021 or such later date as may be prescribed. At the time of writing, March 31, 2023 was the prescribed end date (see O. Reg. 228/212, s. 11.)

Additionally, if a different period is prescribed, paid infectious disease emergency leave would also be available during the prescribed period. At the time of writing no additional periods had been prescribed.

Protecting a Sustainable Public Sector for Future Generations Act, 2019 – ss. 50.1(7)

50.1(7) This section applies despite the Protecting a Sustainable Public Sector for Future Generations Act, 2019, and payments made in accordance with subsection (1.11) are not an increase to existing compensation entitlements or new compensation entitlements for the purposes of that Act.

This subsection was introduced into the ESA by the COVID‑19 Putting Workers First Act, 2021 (CPWFA) effective April 29, 2021, at the same time the CPWFA introduced the entitlement to paid infectious disease emergency leave into the ESA.

This subsection provides that the paid infectious disease emergency leave provisions apply despite the Protecting a Sustainable Public Sector for Future Generations Act, 2019 (PSPSFGA) and that payments of infectious disease emergency leave pay are neither an increase to existing compensation entitlements nor new compensation entitlements for purposes of the PSPSFGA.

The PSPSFGA caps public sector compensation increases. The effect of this subsection is that infectious disease emergency leave pay payments are not counted towards the PSPSFGA’s limit on compensation increases.

s. 50.1(7) – Repealed

Care, Assistance, Support – Specified Individuals – s. 50.1(8)

(8) Subclauses (1.1) (a) (iii) and (1.1) (b) (v) apply with respect to the following individuals:

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.
Any individual prescribed as a family member for the purposes of this section.

Section 50.1(8) lists the individuals with respect to whom an employee may take declared emergency leave or infectious disease emergency leave as referred to in subclauses (1.1) (a) (iii),(1.1) (b) (v) and paragraph 5 of (1.2), respectively. See the discussions above for an explanation of the individuals listed in subsection (8). For information on when declared emergency leave was available during the COVID-19 pandemic, please see section 50.1(1.1)(a).

s. 50.1(9) – REPEALED

Retroactive Order – s. 50.1(10)

Section 7.2(1) of the EMCPA allows for orders made under s. 7.0.2 of the EMCPA to be made retroactive to a certain date. Section 50.1(10) of the ESA 2000 provides that on or after the date to which the order was made retroactive, those employees who were not performing the duties of their position because of the declared emergency and because of the EMCPA order, are deemed to have been on leave, and they have anti-reprisal protections from discipline or other penalties.

For example, the Lieutenant Governor in Council declares an emergency under s. 7.0.1 of the EMCPA on May 1, 2016. On June 1, 2016 the Lieutenant Governor in Council makes an order under s. 7.0.2 of the EMCPA that applies to an employee and pursuant to s. 7.2(1) of the EMCPA it was made retroactive to May 15, 2016. The employee had not been performing the duties of his position since May 16, 2016. Because the order was made retroactive to May 15, 2016 and an emergency had been declared on May 1, 2016, s. 50.1(10) would apply and the employee would be deemed to have been on a declared emergency leave as of May 16, 2016.

Unpaid infectious disease emergency leave - issues specific to pre-march 19, 2020 absences

Although Infectious Disease Emergency Leave was introduced into the ESA on March 19, 2020, employees’ entitlements to unpaid infectious disease emergency leave for COVID‑19 for reasons set out in clauses (i)-(vi) of s. 50.1(1.1)(b) are, by virtue of O. Reg. 228/20 (initially O. Reg. 66/20 before it was revoked and replaced by O. Reg. 228/20 on May 29, 2020), retroactive to January 25, 2020.

Entitlement to unpaid infectious disease emergency leave where an employer temporarily reduced or eliminate d a non-unionized employee’s hours of work for COVID-19 related reasons as prescribed pursuant to clause (vii) of s. 50.1(1.1)(b) is retroactive to March 1, 2020 and applies during the defined COVID-19 period , which ended on July 30, 2022. See O. Reg. 288/20 for a discussion of some issues that arise because of the retroactive application of that deemed leave.

This section addresses some issues that arise because of the retroactive application of this leave.

Scenario: An employee was absent from work on or after January 25, 2020 but before March 19, 2020. The employee was absent for a reason listed in subclauses (i)-(vi) of s. 50.1(1.1)(b). The employer terminated the employee’s employment before March 19 because of the absences.

Question: Is the employee entitled to be reinstated?

Answer: Yes. The retroactive application of the infectious disease emergency leave provisions means that as of March 19, 2020, an employer who terminated the employment of an employee because the employee was absent for one of the reasons listed in subclauses (i)-(vi) of s. 50.1(1.1)(b) between January 25 and March 18, 2020 is required to re-establish the employment relationship on March 19, 2020 (the day that the ESA was amended to provide for infectious disease emergency leave) and is required to reinstate the employee to the employee’s former position, or to a comparable position if the former position no longer exists upon conclusion of the employee’s leave. The requirement to reinstate does not apply if the employment of the employee is ended solely for reasons unrelated to the absences.

Question: Is the employee entitled to be compensated?

Answer: As stated in the previous answer, the employer is required to re-establish the employment relationship on March 19, 2020 (the day that the ESA was amended to provide for infectious disease emergency leave) and reinstate the employee at the end of the employee’s leave (unless the exception to reinstatement applies). If the employer did not do so, an employment standards officer could order the employer to reinstate the employee at the end of the employee’s leave and to pay compensation to the employee for, among other things, lost wages. It is Program policy that damage assessments do not include damages that arose prior to March 19, 2020

Scenario: An employee was absent from work on or after January 25, 2020 but before March 19, 2020. The employee was absent for a reason listed in subclauses (i)-(vi) of s. 50.1(1.1)(b). During those absences, the employee used up some of the employee’s:

vacation days.
statutory leaves days (for example, sick leave or family responsibility leave).
contractual leave days (for example, paid sick days or personal leave days).

Question: Are those days credited back to the employee?

Answer: The Act does not require the employer to reinstate any vacation, statutory leave or contractual leave credits the employee used for pre-March 19, 2020 absences.

Section 50.1.1 – Reimbursement of certain payments made under section 50.1

Section 50.1.1 was introduced into the ESA by the COVID-19 Putting Workers First Act, 2021 (CPWFA), effective April 29, 2021, at the same time that the CPWFA introduced a time-limited entitlement to paid infectious disease emergency leave into the ESA (see s. 50.1).

Section 50.1.1 establishes that employers may be reimbursed for certain infectious disease emergency leave pay payments made to employees pursuant to s. 50.1 of the ESA.

Section 50.1.1 provides that an eligible employer is entitled to be reimbursed, through the Workplace Safety and Insurance Board, the amount of infectious disease emergency leave pay paid to their employees, up to $200 per employee per day of paid infectious disease emergency leave taken.

An employer is not entitled to be reimbursed for payments made to an employee for paid infectious disease emergency leave under the Employment Standards Act (ESA) if either:

the employee received WSIB benefits for the same days of leave
the employer cancelled or rescinded the paid leave offered to their employees as part of an employment contract on, or after, April 19, 2021

In other words, an employer cannot cancel their employee’s contractual entitlement to paid leave in order to take advantage of the employer reimbursement.

Reimbursement is only for infectious disease emergency leave pay under the ESA. Employers are not entitled to be reimbursed for vacation pay although employees are entitled to vacation pay for the wages they earn while on the paid leave. Employers are also not entitled to be reimbursed for public holiday pay that may have been paid to employees (see section 50.1 for more information on this).

Eligible employers make their application for reimbursement to the Workplace Safety and Insurance Board (WSIB) within 120 days of the date the employer paid the employee, or by July 29, 2023, whichever is earlier. The reimbursement program is not a WSIB program and is not funded by the WSIB’s insurance fund. Eligible employers do not need to be registered with the WSIB in order to receive this reimbursement. Funding to administer the reimbursement program is provided by the Ministry of Labour, Immigration, Training and Skills Development (MLITSD).

The provisions that establish the system for reimbursement are set out below. Information about the application process, criteria for reimbursement, and other aspects of the reimbursement system are available at the COVID-19 Worker Income Protection Benefit Program website.

Subsection 50.1.1(18) of the Act provides that an overpayment made by the WSIB may be recovered from the employer by the WSIB or by the Ministry of Labour, Immigration, Training and Skills Development in accordance with the prescribed process. O. Reg. 637/21, which was made on September 3, 2021, prescribes the process by which an overpayment may be recovered. The text of the Regulation is set out at the end of this section.

Definition

50.1.1 (1) In this section,

“Board” means the Workplace Safety and Insurance Board, continued under subsection 159 (1) of the Workplace Safety and Insurance Act, 1997, despite the definition of “Board” in subsection 1 (1) of this Act.

Reimbursement for paid leave

(2) An employer may apply to the Board, in accordance with this section, to be reimbursed for payments made to an employee for paid leave taken under subsection 50.1 (1.2).

Same, maximum

(3) An employer is entitled to be reimbursed for payments made to an employee for paid leave taken under subsection 50.1 (1.2) up to a maximum of $200 per day, per employee.

Same, exclusion

(4) Despite subsection 50.1 (1.9), an employer is not entitled to be reimbursed for payments made to an employee on or after the day the COVID-19 Putting Workers First Act, 2021 receives Royal Assent for a paid leave of absence under an employment contract in circumstances for which the employee would also be entitled to take a leave under subsection 50.1 (1.2).

Same, exclusion re change to employment contract

(5) If, under an employment contract that was in effect on April 19, 2021, an employee was entitled to a paid leave of absence in circumstances for which the employee would also be entitled to take a leave under subsection 50.1 (1.2), but due to a change to the employment contract on or after April 19, 2021, the employee is no longer entitled to some or all of the paid leave of absence that the employee was entitled to before the change, the employer is not entitled to be reimbursed for payments made to that employee for a paid leave of absence, whether the leave is taken under subsection 50.1 (1.2) or under the employment contract, to the extent that the employee was entitled to the leave of absence under the employment contract before the change.

Same, exclusion re payments made under the Workplace Safety and Insurance Act, 1997

(6) An employer is not entitled to be reimbursed for payments made to an employee for paid leave taken under subsection 50.1 (1.2) if the employee received benefits under the Workplace Safety and Insurance Act, 1997 for the days of leave.

Application for reimbursement

(7) An application under this section shall be made by filing the following with the Board:

A completed application in the form approved by the Board.
An attestation, to be completed by the employer in the form approved by the Board that,
1. confirms that the employer made a payment to the employee for paid leave taken under subsection 50.1 (1.2),
2. specifies the dates on which the leave was taken by the employee,
3. specifies the date on which the payment was made and the amount of the payment made, and
4. confirms that, on or after April 19, 2021, the employer was not otherwise required under an employment contract to make the payment to the employee.
A record of the payment made to the employee in the form approved by the Board.
Information about claims filed with the Board under the Workplace Safety and Insurance Act, 1997 in respect of the employee.
Any other information required by the Board.

Time limit

(8) An application under this section shall be made within 120 days of the payment in respect of which the application is made.

Same, final date for application

(9) Despite subsection (8), no application under this section shall be made by an employer or accepted by the Board,

(a) after January 25, 2022;
(b) if a later date is prescribed for the purposes of subsection 50.1 (5.2), 120 days after that later date; or
(c) if an additional period is prescribed for the purposes of subsection 50.1 (5.3), 120 days after the last day of that period.

No determination if application incomplete

(10) The Board shall not make a determination regarding an employer’s entitlement to reimbursement under this section if the employer’s application does not meet the requirements of subsection (7) or is not filed within the time limits set out in subsections (8) and (9).

Determination of entitlement

(11) The Board shall make a determination regarding an employer’s entitlement to reimbursement under this section after receiving the employer’s application and shall advise the employer of its determination in writing after making its determination.

Same, payment

(12) If the Board determines that an employer is entitled to be reimbursed under this section, the Board shall pay the employer the amount to which the employer is entitled.

No right of reconsideration or appeal

(13) A determination made by the Board regarding an employer’s entitlement to reimbursement under this section is not a final decision of the Board for the purposes of the Workplace Safety and Insurance Act, 1997 and an employer has no right of reconsideration by, or appeal to, the Board or the Workplace Safety and Insurance Appeals Tribunal in respect of a determination made by the Board under this section.

Hearing not required

(14) The Board is not required to hold a hearing when making a determination or exercising a power under this section.

No complaint

(15) Section 96 does not apply to a determination made by the Board under this section.

Overpayments

(16) If the Board pays an employer an amount in excess of the amount to which the employer is entitled under this section, the amount of the excess is an overpayment and is an amount owing under this Act.

Same

(17) If the Board pays an employer an amount under this section and the employee in respect of whom the employer was paid subsequently receives benefits under the Workplace Safety and Insurance Act, 1997 for the days of leave for which the employer was paid, the amount of the payment to the employer is an overpayment and is an amount owing under this Act.

Same

(18) An overpayment made by the Board under this section may be recovered from the employer by the Board or the Ministry in accordance with the prescribed process.

Ministry to make payments to Board

(19) The Ministry shall make payments to the Board to defray the costs of administering this section, including the cost of payments made to employers and the administration costs of the Board.

Same, appropriation

(20) Money required to defray the costs of administering this section shall be paid out of the money appropriated by the Ministry from the Consolidated Revenue Fund for that purpose by the Legislature.

Repayment by Board

(21) On or before the prescribed date, the Board shall pay the Ministry any amounts paid to the Board under subsection (19) that are no longer required for the purpose of administering this section.

Same, payments not part of insurance fund

(22) Payments made to the Board under subsection (19) shall not form a part of the insurance fund that is administered by the Board under the Workplace Safety and Insurance Act, 1997 and the Board shall not make any payments from the insurance fund for any purpose under this section.

Contract for services

(23) The Board may enter into a contract or agreement with any person for the purpose of administering this section.

Recordkeeping

(24) The Board shall maintain such records relating to the administration of this section as are required by the Ministry, including records that are necessary to verify applications and payments made under this section, and shall provide those records to the Ministry.

Collection and use of information

(25) The Board may collect and use personal information within the meaning of the Freedom of Information and Protection of Privacy Act for the purpose of administering this section.

Same

(26) The Board may use information collected under the authority of this section for the purpose of administering and enforcing the Workplace Safety and Insurance Act, 1997.

Same

(27) The Board may use information collected under the authority of the Workplace Safety and Insurance Act, 1997 for the purpose of administering this section.

Disclosure of information

(28) Except as otherwise provided for in this section, the Board shall not disclose any information collected under the authority of this section unless authorized or required by law to do so.

False or misleading information

(29) No person shall provide false or misleading information under this section.

Same, disclosure to Director

(30) If the Board is of the opinion that false or misleading information has been provided by an employer in an application under this section, the Board shall disclose that information to the Director.

Investigation

(31) An employment standards officer or other prescribed person may investigate a possible contravention of this section.

Immunity

(32) No action or other proceeding for damages may be commenced against a member of the board of directors, or an officer or employee of the Board, for an act or omission done or omitted by the person in good faith in the execution or intended execution of any power or duty under this section.

O. Reg. 637/21: Section 50.1.1 overpayment recovery

Overpayment recovery process

1. (1) For the purposes of subsection 50.1.1 (18) of the Act, the process set out in sections 2 to 5 of this Regulation is prescribed as the process by which an overpayment made by the Workplace Safety and Insurance Board under section 50.1.1 of the Act may be recovered from an employer.

(2) Subsections 91 (1) to (10) and (11) to (13) of the Act apply with respect to inspections to determine whether an overpayment was made by the Workplace Safety and Insurance Board to an employer.

Order to repay overpayment

2. (1) If an employment standards officer finds that an overpayment was made by the Workplace Safety and Insurance Board to an employer, the officer may order the employer to pay the amount of the overpayment to the Minister of Finance.

(2) An order issued under subsection (1) shall also require the employer to pay to the Director in trust an amount for administrative costs equal to the greater of $100 and 10 per cent of the overpayment.

(3) The order shall contain information setting out the nature of the overpayment or be accompanied by that information.

(4) The order shall be served on the employer in accordance with section 95 of the Act.

(5) Every employer against whom an order is issued under this section shall comply with it according to its terms.

Limitation period

3. (1) An employment standards officer shall not issue an order under section 2 more than four years after the date on which the overpayment was made by the Workplace Safety and Insurance Board to the employer.

(2) An employment standards officer shall not amend or rescind an order under section 2 after the last day on which the officer could have issued the order under subsection (1) of this section unless the employer against whom the order was issued consents to the rescission or amendment.

Review

4. (1) An employer against whom an order has been issued under section 2 is entitled to a review of the order by the Board if, within 30 days after the day on which the order is served, the employer,

(a) applies to the Board in writing for a review; and

(b) pays the amount owing under the order to the Director in trust or provides the Director with an irrevocable letter of credit acceptable to the Director in that amount.

(2) The Board may extend the time for applying for a review under this section if it considers it appropriate in the circumstances to do so.

(3) The Board shall hold a hearing for the purposes of the review.

(4) The parties to the review are the employer against whom the order was issued and the Director.

(5) Subsections 116 (8) and (9), 117 (1) and (2), section 118 and subsections 119 (3) to (14) of the Act apply, with necessary modifications, with respect to a proceeding under this section.

(6) If an employer fails to apply for a review of an order issued under section 2 in accordance with subsection (1) of this section, the order becomes final and binding against the employer.

Collections

5. (1) Sections 125 to 127 and subsections 128 (1), (2), (4), (5) and (6) of the Act apply with respect to the collection of amounts owing under an order issued under section 2.

(2) Subject to subsection (3), a collector,

(a) shall pay any amount collected with respect to administrative costs to the Director;

(b) shall pay any amount collected with respect to an order under section 2 to the Minister

of Finance; and

(3) Despite subsection (1), if an amount is owing by an employer under an order issued under section 2 and an amount is also owing by the employer under an order issued under the Act to pay wages, fees or compensation, and the money collected by the collector is less than the full amount owing to all persons, the money shall be apportioned among those to whom it is owing under the order issued under the Act to pay wages, fees or compensation in the proportion each is owed and paid to them in accordance with subsection 128 (4) of the Act before any amount is apportioned in respect of the order issued under section 2.

Section 50.2 – Reservist leave

Reservist leave – subsection 50.2(1), (2)

50.2(1) An employee is entitled to a leave of absence without pay if the employee is a reservist and will not be performing the duties of his or her position because,

(a) the employee is deployed to a Canadian Forces operation outside Canada;
(b) the employee is deployed to a Canadian Forces operation inside Canada that is or will be providing assistance in dealing with an emergency or with its aftermath;
(b.1) the employee is participating in Canadian Forces military skills training; or
(c) the prescribed circumstances apply.

(2) Participation, whether inside or outside Canada, in pre-deployment or post-deployment activities that are required by the Canadian Forces in connection with an operation described in clause (1) (a) is considered deployment to the operation for the purposes of that clause.

On December 3, 2007, the Employment Standards Act, 2000 was amended by the Fairness for Military Families Act (Employment Standards and Health Insurance), 2007, SO 2007, c 16 to create a new leave entitlement called reservist leave. The reservist leave provisions were amended on April 11, 2022 by the Working for Workers Act, 2022 to add an additional reason for which reservist leave can be taken (to participate in Canadian Forces military skills training) and to shorten the amount of time an employee must be employed in order to be entitled to reservist leave from six consecutive months to three consecutive months.

This standard gives an employee who is a reservist the right to an unpaid leave of absence if the employee will not be performing the duties of his or her position because the employee is deployed to specified Canadian Forces operations or is participating in Canadian Forces military skills training. A "reservist" is defined as a member of the reserve force of the Canadian Forces as referred to in s. 15(3) of the National Defence Act, RSC 1985, c N-5.

Sections 50.2(1) and (2) provide that an employee who is a reservist will be entitled to the leave ifthe employee will not be performing the duties of the employee’s position because:
- the employee is deployed to a Canadian Forces operation outside of Canada. This includes participation, whether inside or outside of Canada, in pre-deployment and post-deployment activities that are required by the Canadian Forces in connection with the operation
- the employee is deployed to a Canadian Forces operation inside Canada that is or will be providing assistance in dealing with an emergency or with its aftermath
- the employee is participating in Canadian Forces military skills training. It does not matter whether the training is inside or outside of Canada. For the purpose of this eligibility criterion, the Program refers to the meaning of “military skills training” given to that term by the Canadian Forces, which includes, for example, basic training and annual training, and certain courses that advance the employee in the employee’s military career or through the military ranks. For the purpose of this eligibility criterion, it does not matter whether the training is provided directly by the Canadian Forces, or by another entity. (Note that where an employee is participating in military skills training as part of pre-deployment – or post-deployment – activities that are required by the Canadian Forces in connection with an operation outside of Canada, eligibility for reservist leave during the time the employee is participating in that training may arise under two different criteria.)
- prescribed circumstances apply. (At the time of writing, there were no prescribed circumstances)
With respect to s. 50.2(1)(b), the term "emergency" is defined in s. 50.2(11) to mean:
- A situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature, a disease or other health risk, an accident or an act whether intentional or otherwise; or
- A situation in which a search and rescue operation takes place.

Restriction – section 50.2(3)

To be eligible for reservist leave, the employee has to have been employed by the employer for at least three consecutive months. As of the time of writing, no alternative period has been prescribed.

It is not necessary that the employee be actively working for all or any part of the qualifying period prior to commencing the leave. For example, the employee could be off receiving short-term disability benefits, on a Part XIV leave, on vacation, or on lay-off during the three month qualifying period. As long as there has been no break in the employment relationship within the preceding three month period, the employee is entitled to commence a leave.

Length of leave – section 50.2(4)

Section 50.2(4) provides that an employee's entitlement to reservist leave lasts for the prescribed period or, if no period is prescribed, for as long clause (1)(a), (b) or (b.1) or the circumstances set out in a regulation made under clause 1(c) apply to the employee. At the time of writing, there has been no period prescribed nor have circumstances been set out for the purposes of clause (1)(c) – therefore, the employee will be entitled to be on reservist leave as long as clause 50.2.1(a), (b) or (b.1) applies to the employee (i.e., deployment to a Canadian Forces operation outside Canada – including pre-deployment and post-deployment activities that are required in connection with the operation, deployment to a Canadian Forces operation inside Canada that is dealing with an emergency or its aftermath, or participation in Canadian Forces military skills training).

Advising employer re start of leave – subsection 50.2(5), (6)

Section 50.2(5) requires an employee who intends to take reservist leave to give their employer the prescribed period of notice of the day on which the employee will begin the leave or, if no notice period is prescribed, reasonable notice. At the time of writing, there has been no prescribed period of notice, therefore an employee is required to give their employer reasonable notice in advance that the employee intends to take reservist leave. In circumstances where the employee must begin the leave before advising the employer, the employee is required pursuant to s. 50.2(6) to advise the employer as soon as possible after beginning the leave. The employee is required to advise the employer in writing pursuant to s. 50.2(10).

An employee does not lose his or her right to reservist leave if he or she fails to comply with subsection 50.2(5) or (6). An employee's entitlement to reservist leave arises where an employee meets the qualifying conditions in section 50.2(1). It is the Program's position that the failure to advise the employer before or as soon as possible after the leave begins does not negate that entitlement. This approach is consistent in the context of the other statutory leaves, where the structure of the entitlement and notice provisions are similar to these. See for example Employment Standards Act Part XIV, subsection 46(4) and 48(4).

Similarly, the question may arise as to whether an employer can penalize an employee for failing to give advance notice that the employee will be absent from work (as may be required under an employer policy), where the time off is a reservist leave under the ESA 2000. Section 50.2 sets out the conditions for an employee's eligibility for reservist leave. Section 50.2(5) requires the employee taking reservist leave to provide reasonable notice that the employee is taking the leave, and s. 50.2(6) provides that "if the employee must begin the leave before advising the employer, the employee shall advise the employer of the leave as soon as possible after beginning it." It is clear from s. 50.2(6) that the Act contemplates situations where the employee would be unable to advise the employer in advance of commencing the reservist leave - however, it also clear from s. 50.2(5) that an employee who can give reasonable advance notice must do so. Consequently, the failure to give reasonable notice in advance of taking leave, when it would have been possible for the employee to do so, can be the subject of disciplinary action by the employer without violating s. 74. However, the following points should be borne in mind:

The employee's failure to give reasonable advance written notice would not be a lawful basis on which to deprive the employee of the right to take the leave if the qualifying conditions in s. 50.2(1) have been met. An employer could not, for example, take the position that failure to give reasonable advance notice when it would have been possible for the employee to do so will result in the time taken off not be considered as reservist leave.
Any discipline for failing to provide notice in situations where such notice is required under s. 50.2(5) (i.e., where s. 50.2(6) does not apply) would have to be appropriately linked to the failure to give reasonable advance written notice and must not, in effect penalize the employee for exercising the right to leave. The motive for any discipline that the employer does impose must clearly be the employee's failure to give reasonable advance written notice and not the taking of the leave itself.

In addition, where section 50(2)(6) does apply, an employer would be able to impose discipline if an employee fails to provide written notice of the reservist leave after the leave commences, or if the employee provides notice of the leave so late that one would not reasonably be able to say that it falls within section 50.2(6). However, the employer's disciplinary action would have to be appropriate, and in no way a penalty or reprisal for the employee having taken the leave, but only for the failure to give notice.

Evidence of entitlement – subsection 50.2(7), (8)

Section 50.2(7) gives an employer the ability to require an employee to provide proof that he or she is or was entitled to take reservist leave. Where an employer does require evidence, section 50.2(8) states that the employee shall:

Provide the prescribed evidence, or evidence reasonable in the circumstances if no evidence is prescribed; and
Provide the evidence at the prescribed time, or at a time reasonable in the circumstances if no time is prescribed.

At the time of writing, there has been no prescribed evidence or prescribed time. Therefore, where evidence is required, it must be evidence that is reasonable in the circumstances. Evidence of entitlement to reservist leave may be a document, notice or other kind of confirmation from the Canadian Forces that one of the qualifying conditions set out in section 50.2(1) applies to the employee. The evidence that would be considered "reasonable in the circumstances" will depend upon all of the circumstance in any given situation.

Further, the employee is obliged to provide the evidence at a time that is reasonable in the circumstances. The corollary of this is that timelines imposed by the employer for providing such evidence must be reasonable in the circumstances.

Advising employer re end of leave – section 50.2(9)

Section 50.2(9) requires an employee who has taken reservist leave and intends to end the leave, to give their employer the prescribed period of notice of the day on which the employee intends to end the leave, or if no notice period is prescribed, reasonable notice. At the time of writing, no period of notice has been prescribed; therefore an employee is required to give their employer reasonable notice in advance of the day on which the employee intends to end the leave. The employee is required to advise the employer in writing pursuant to s. 50.2(10).

Note however that pursuant to section 53(1.1), an employer of an employee who has been on a reservist leave may postpone the employee's reinstatement until:

A prescribed day; or
If no day is prescribed, the later of,
- The day that is two weeks after the day on which the leave ends; and
- The first pay day that falls after the day on which the leave ends.

Consequently, even though an employee has provided notice of his or her intended return date from leave in accordance with section 50.2(9), the employer may postpone the employee's reinstatement under section 53(1.1). As no day has been prescribed under section 53(1.1)(a), the employer may postpone the reinstatement to the later of the day that is two weeks after the day the leave ends or, the first pay day that falls after the day on which the leave ends as per the employee's notice.

Written notice – section 50.2(10)

Section 50.2(10) requires that notice under section 50.2(5) and (6) (advising the employer regarding start of leave) and section 50.2(9) (advising the employer re: end of leave) must be given in writing. This is in contrast to the requirement to advise the employer in the context of some other leaves (e.g. sick leave, family responsibility leave, bereavement leave) where the notice may be given in writing or orally.

Definition, Emergency – section 50.2(11)

Section 50.2(11) defines what "emergency" means in section 50.2(1)(b) with respect to Canadian Forces operations inside Canada. Example of emergencies that could meet the requirements under section 50.2(1)(b) are Canadian Forces search and rescue operations and operations to provide assistance in dealing with natural disasters or their aftermath.

Transition – section 50.2(12)

Section 50.2(12) states that the reservist leave provisions only apply if the deployment described in section 50.2(1) began on or after December 3, 2007, the day the Fairness for Military Families Act (Employment Standards and Health Insurance), 2007 received Royal Assent and further requires that notice of the leave be given on or after that date, in accordance with subsection 50.2(5) or (6).

As a consequence of this provision, an employee was not entitled to reservist leave in respect of a deployment that commenced before December 3, 2007.

Section 51 – Rights during leave

Rights during leave – section 51(1)

This section allows an employee on a Part XIV leave to continue to participate in all the types of plans listed in section 51(2), unless he or she elects in writing not to do so. In other words, unless the employee advises in writing to the contrary, the employer must assume that the employee will continue to participate in the benefit plans, and therefore both the employer and the employee will continue to make their respective contributions.

Special rules apply to reservist leave – see subsection 51(4) and (5) below.

The employee on leave continues to participate in the specified benefit plans, even if all the employees in the employee's department are laid off, go on strike, or are locked out while he or she is on leave, and the benefits of those other employees are cut off. He or she has the right to have the employer pay its share of the contributions during the entire leave – subject to the provisions of section 51(3).

An employee may already be on lay-off, on strike or locked out when he or she commences the leave, and his or her benefits may have been suspended when the lay-off, strike or lock-out began. However, when the employee begins the leave, he or she has the right to begin participation again in the benefit plans and require the employer to pay its share of the contributions during the entire leave – subject to the provisions of section 51(3).

Note: participation in certain benefit plans is fundamentally different from the right to continue to accrue credit for length of service (and seniority and length of employment) during a leave, as provided in section 52. Typically, the right to ongoing participation in a benefit plan is not a function of length service, length of employment or seniority. It is simply an arrangement for the payment or sharing of the payment of a premium. As a result, the rights to continue to participate in these plans are set out separately from the right to accrue service (and seniority and length of employment) while on leave.

However, the right to begin participating in a benefit plan may be tied to length of service or length of employment. It is not unusual, for example, for the terms of a benefit plan to require the employee to have been employed for three months or to have completed three months of service before he or she will be eligible for benefits under the plan. In that case, time spent on leave would count towards the length of service or length of employment required for participation in the plan.

Benefit plans – section 51(2)

Under section 51(1), an employee who is on a Part XIV leave (with some exceptions that apply to reservist leave – see section 51(4) and (5)) has the right to continue to participate in certain benefit plans. This section lists the plans to which section 51(1) applies:

Pension plans;
Life insurance plans;
Accidental death plans;
Extended health plans;
Dental plans;
Any other plans that are prescribed by regulation (as of the date of writing, no other plans have been prescribed).

There are no specific definitions of these plans for the purposes of Part XIV (Leaves of Absence). However, the terms "pension plan" and "life insurance plan" are defined in section 1 of Ontario Regulation 286/01, and it may be helpful to refer to those definitions should an issue arise as to whether a plan is a pension plan or an insurance plan.

Subsection 51(2) itself gives an employee the right to continue to participate only in the types of plans listed in the subsection. If the employer provides other types of plans, it would not be a violation of the subsection for the employer to discontinue the employee's participation in those plans for the length of the leave. The most significant types of plans that are not listed in this section (and that are often provided by employers) are short-term and long-term disability plans. However, section 51(1) should be read in conjunction with section 10 of Ontario Regulation 286/01, which provides as follows:

The effect of section 10 of Ontario Regulation 286/01 is to require short-term and long-term disability benefits to continue to be provided to employees on Part XIV leave (and any longer leave that constitutes a "greater right or benefit" under section 5(2) of the Act) if the employer's plan provides such benefits to employees on leaves other than Part XIV leaves (for example, education leave). (Note that all references to a Part XIV leave in this and the next paragraph include a leave that constitutes "a greater right or benefit".) Only if the plan denies access to disability benefits during non- Part XIV leaves can the employee be denied access to disability benefits while on a Part XIV leave.

Further, even in this latter case (where a plan denies access to disability benefits during non- Part XIV leaves and section 10 of Ontario Regulation 286/01 therefore does not apply), a female employee on a pregnancy or parental leave can access short-term and long-term disability benefits that she would have had access to had she not been on a pregnancy or parental leave during that portion of the leave in which she is unable to work for health reasons related to pregnancy or childbirth. This is because of the Supreme Court of Canada decision in Brooks v Canada Safeway Ltd., [1989] 1 SCR 1219, 1989 CanLII 96 (SCC), in which the Court held that because discrimination on the basis of pregnancy is discrimination on the basis of sex, it is discriminatory to deny women short-term or long-term disability benefits that they otherwise would have been entitled to had they not been on the leave during that portion of a leave in which they are unable to work for health-related reasons related to pregnancy or childbirth, as these constitute a valid-health related reason for an absence from work. As a result, it would constitute discrimination on the basis of sex to deny a female employee disability benefits for that period of the leave. For other court decisions respecting the right to disability benefits for female employees during the "health related" portion of a pregnancy leave, see Alberta Hospital Association v Parcels, 1992 CanLII 6106 (AB QB) and O.S.S.T.F., District 34 versus Barton.

Note that this requirement to permit a female employee on a pregnancy or parental leave access to short-term and long-term disability benefits during that portion of the leave that she is unable to work for health reasons related to pregnancy or childbirth applies only if the employee would otherwise have had access to the plan had she not been on leave. If the employee could not have had access even if she had not gone on leave, there would be no requirement to provide plan benefits. Consider the example of an employer who offers only a modest short-term disability plan (say, three days per year) and no long-term plan who closes its operations from November to March every year. The employer puts all of its employees on temporary lay-off during this time, and discontinues its provision of short-term disability benefits for all employees during the lay-off. If an employee began her pregnancy leave on December 1, it would not be a violation of the Act if she cannot access the disability benefits for the portion of her leave in which she is unable to work for health reasons related to pregnancy and childbirth, because she would not have had access to those benefits even if she had not taken leave.

Employer contributions – section 51(3)

Pursuant to this provision, an employer will be relieved of the obligation to make the employer portion of contributions to the benefit plans listed in s. 51(2) only if the employer has obtained a written notice from the employee that he or she will not be paying his or her portion of the contributions. (This provision must be read in conjunction with s. 51(4) and (5), which establishes special rules for reservist leave.)

Although, generally, obtaining the written notice that the employee will not make contributions is an administrative problem for the employer rather than a matter of interpretation under the Employment Standards Act, 2000, an officer may have to determine whether such a notice might have been obtained under duress.

An employer may find it helpful to provide employees with sufficient information to enable the employee to make an informed decision to continue paying the contributions to reduce the possibility of a claim that the employee was "tricked" into giving the notice.

Example 1

Employee A gives the employer written notice that she does not intend to continue paying her share of the contributions, if any, during her pregnancy and parental leave. The employer will not continue its share during the leave and A's coverage will lapse during the leave. The group insurance plan may also require that A, after the end of her leave, undergo a waiting period before becoming re-enrolled in the plan.

Example 2

Employee B gives the employer written notice that he wishes to pay his share of the contributions to continue coverage during his parental leave (or does not give any notice at all), but B turns out to be unable to pay the contributions during the leave. The employer may pay both the employer and employee share during the leave and then, with B's written authorization, deduct B's share of the contributions from his wages after he returns to work. If the employer does not pay both the employer's and B's shares in this manner, the employer will, in the case of non-pension benefits, pay both the employer's and B's share, but for a pro-rated portion of the leave. For example, if the employer's share is 50 per cent, the employer would pay 100 per cent, but only for half of the leave. There would be no coverage during the second half of the leave and the employee may be required to undergo a waiting period after the end of the leave before becoming re-enrolled in the plan. With pension benefits, the employer would pay its share during the whole leave, and B, to the extent that the plan allowed, would have the right to make up his share after the leave.

Contribution calculations

If the employer's benefit plan contributions are a percentage of the employee's wages, the employer is still obligated to make contributions during the leave, even though the employee is not receiving any wages from the employer during that time. The amount of the contributions would be determined with reference to the wage rate that the employee received prior to going on leave. If this prior wage rate fluctuated and the employment contract did not stipulate how contributions are to be determined, a reasonable average should be calculated in order to determine the base on which the contributions are computed. Officers may consider it appropriate to calculate the average regular wage over the 12 weeks, a period used in the context of Part XV of the Act (Termination and Severance of Employment), preceding the commencement of the leave. Where a wage increase is given to other employees during the leave and the employee would have received such an increase if he or she had not gone on leave, the employer contributions during the leave in regards to the employee should be adjusted upwards to reflect the increase.

Some employers do not offer benefit plans. Rather, they pay directly to the employee some amount of money instead of making contributions to a plan. These are often known as "percentage in lieu of benefits" arrangements. As such payments are not contributions to a benefit plan, an employer is not required to continue making them during the course of a Part XIV leave.

Annual contributions to group Registered Retirement Savings Plans ("RRSP") are limited to an amount related to wages received. The continuation of contributions to a group RRSP while an employee is on leave and not receiving any wages may result in an over-contribution to the plan. This possible result does not absolve the employer of its obligation to continue contributions throughout the leave. If an over-contribution does result, the recovery rules of the plan or of the Canada Revenue Agency ("CRA") will apply. However, where employees are participating in deferred profit-sharing plans, CRA has the authority to revoke the plan when contributions exceed the maximum allowable. Therefore, Program policy is that employers may cease making contributions to these plans, but only once they reach the maximum amount allowable under CRA rules.

If the employer is a member of a Multi-Employer Benefit Plan, and contributions are not required to be made to the plan in order to continue the employee's coverage during the leave, the employer will still be required to make contributions during the leave, except in cases where the employee is not required to draw on his or her benefit credits, if any, during the leave.

Reservist leave – subsection 51(4), (5)

An employee who is on a statutory leave other than reservist leave continues to participate in all types of benefit plans listed in s. 51(2) (e.g., pension plans, life insurance plans, accidental death plans, extended health plans, and dental plans) unless he or she elects not to do so. Pursuant to section 51(4), an employee on reservist leave does not have the right to continue to participate in such benefit plans and the employer is not required to make contributions to the specified plans during an employee's reservist leave. However, if an employer elects to postpone the employee's return date pursuant to s. 53(1.1) (see Employment Standards Act Part XIV section 53 for a discussion), section 51(5) entitles an employee to resume participating in the plans during the postponement period, unless he or she elects not to do so, and correspondingly requires the employer to resume making its contributions to the plans.

The special rules regarding benefit plan participation during reservist leave and the postponement period set out in subsection 51(4) and (5) apply unless otherwise prescribed. At the time of writing, no other rules had been prescribed.

Section 51.1 – Leave and vacation conflict

Leave and vacation conflict – section 51.1(1)

This provision was introduced by the ESA 2000. It addresses the situation where an employment contract places restrictions on the ability to defer taking vacation entitlements, such that a conflict between the right to vacation and the right to take a Part XIV leave is created. Specifically, it applies where an employment contract restricts or forbids the deferral of taking vacation, and, as a result, an employee on a Part XIV leave would have to either take less than their full Part XIV leave entitlement or give up some or all of their vacation or vacation pay entitlement under an employment contract. In this case, the employee has the option of deferring taking the vacation until the leave is over, or to a later date agreed upon in writing by the employer and employee. See Employment Standards Act Part I, section 1(3) and section 1(3.1) for more information on agreements in writing. Section 51.1(2) addresses conflicts between vacation and Part XIV leaves that arise because of the statutory deadline for taking vacation. See subsection (2) below.

For example, an employment contract provides an employee whose period of employment is less than five years with three paid weeks of vacation per year. With respect to the one week that is over and above the ESA 2000's minimum standards, the contract has a "use it or lose it" clause that stipulates the extra week of vacation must be used by December 31 of each year. A recently hired employee is on a combined pregnancy and parental leave from July 1, 2018, to July 1, 2019. She had not taken any of the extra week of vacation before going on leave. Section 51.1(1) provides that the employee has the option of taking that extra week when her leave ends on July 1, 2019, or to a later date if she and the employer agree.

This section should be read in conjunction with s. 51.1(3), which allows an employee to forego vacation time (but not vacation pay), if the employee's employer agrees (in writing) and the Director of Employment Standards approves the agreement. See subsection (3) further below.

Leave and completion of vacation conflict – section 51.1(2)

This provision addresses the situation where the section 35 or section 35.1 deadline for taking vacation entitlements under the ESA 2000 comes up while an employee is on a Part XIV leave. In this case, the vacation is to be taken immediately upon the expiry of the leave, or, if the employer and employee agree in writing on a later date. See Employment Standards Act Part I, section 1(3) and section 1(3.1) for more information on agreements in writing. Section 51.1(1) addresses conflicts between vacation and Part XIV leaves that arise because of contractual restrictions on deferring vacation entitlements – see subsection (1) above.

For example, an employee is entitled to two weeks of vacation provided for in section 33 (1) of the Employment Standards Act, 2000. The employee started work on January 1, 2016. The deadline for completing the vacation earned from January 1, 2016, to December 31, 2016, is, pursuant to section 35, October 31, 2017. The employee is on a combined pregnancy and parental leave from February 1, 2017, to January 31, 2018 (however, note that a combined pregnancy and parental leave may be longer than 52 weeks, up to a maximum entitlement of 78 weeks). She had not taken any vacation prior to her leave. Section 51.1(2) provides that the two weeks of vacation will be taken immediately after her leave expires, i.e., the two weeks' vacation must start on February 1, 2018. If the employee and employer agree in writing, the employee can take her vacation at a later date.

This section should be read in conjunction with section 51.1(3), which allows an employee to forego vacation time (but not vacation pay), if the employee's employer agrees (in writing) and the Director of Employment Standards approves the agreement. See subsection (3) below.

Alternative right, vacation pay – section 51.1(3)

This provision was introduced by the ESA 2000. It provides that an employee to whom s. 51.1 applies (i.e., an employee on a Part XIV leave whose leave creates a conflict with his or her vacation rights) can, instead of taking his or her vacation at the end of the leave (or at a later date agreed to with the employer) as provided for in s. 51.1(2) and (3), forego the vacation time and receive only the vacation pay. This alternative right can only be exercised in accordance with s. 41 of the ESA 2000, i.e., if the employer agrees in writing to the plan, and the Director of Employment Standards approves the agreement. See Employment Standards Act Part I, section 1(3) and section 1(3.1) for more information on agreements in writing.

Section 52 – Length of employment

Length of employment – section 52(1)

Section 52(1) requires employers to give employees on Part XIV leave credit toward length of employment, length of service and seniority for the purpose of determining the employee's rights under an employment contract. This provision should be read in conjunction with the exception contained in section 52(2) of the ESA 2000 regarding completion of probationary periods.

In other words, if rights or other entitlements are earned by way of length of employment, length of service or seniority, these rights or entitlements will continue to accrue during periods of Part XIV leave.

An attempt to exclude periods of Part XIV leave from the calculation of length of service, seniority and length of employment and corresponding entitlements to rights or benefits will be considered null and void, as an attempt to contract out of the Employment Standards Act, 2000. A proration clause will be void if its effect is to remove the period (or portion thereof) of Part XIV leave from the calculation of length of service, seniority or length of employment and by extension, reduce an entitlement that normally accrues through length of service, seniority or length of employment. It may even be considered an attempt to penalize the employee for having exercised the right to leave and thereby constitute a violation of s. 74 of the ESA 2000.

Note, however, that in the context of the requirement that time spent on leave be included when determining the employee's length of service, it is the policy of the Program that employees will earn credit only for length of service, but not for service itself, that is, the employee is not treated as if they had actually been at work during the leave. This reflects a change in past policy. For more details, see the discussion under the heading "Vacation Entitlements" further on in this section.

History

Section 42(4) of the former Employment Standards Act, which was the predecessor to section 52(1) of the Employment Standards Act, 2000, was amended effective December 1, 1996, by the Employment Standards Improvement Act, 1996, SO 1996, c 23. The earlier version of section 42(4) read as follows:

The amendment codified the Program's original policy position (held between December 1990 and November 1995) regarding the interpretation of the word "seniority" in the pre-1996 version of s. 42(4). During that period, the Program took the view that seniority included the concept of service and, therefore, employees accrued not only seniority but also credit for service during periods of pregnancy and parental leave. However, that interpretation was not supported by adjudicators and referees, and the policy was changed on November 15, 1995. From November 15, 1995, until s. 42(4) was amended by the Employment Standards Improvement Act, 1996 on December 1, 1996, the Program's position was that the word seniority could not be interpreted to include the concept of "service".

On December 1, 1996, the "new" s. 42(4) came into force, specifically requiring employers to credit employees not only for seniority but also for length of service (as well as "length of employment") during periods of pregnancy and parental leave (the only two leaves available under the ESA 2000 at that time).

Calculation of service – Transitional issues

All employees on leave as of December 1, 1996, began accruing credit for length of service as of that date, even though the leave commenced prior to that date. For example, an employee who was on a leave from August 1, 1996, to February 1, 1997, would not receive any credit for length of service for the period August 1 to November 30, 1996, but would accrue such credit for the period December 1, 1996, to February 1, 1997.

In this example, the employee also accrued credit for seniority and length of employment for the entire period of leave (August 1, 1996 to February 1, 1997).

The phrases in paragraphs 1 and 2 and s. 52(1), "whether or not it is active employment" and "whether or not that service is active" indicate that for purposes of contractual provisions that refer to, say, "length of active employment" or "length of active service", time spent on a Part XIV leave will be counted in determining the employees length of active employment or length of active service, even though the period of an employee's pregnancy or parental leave, for example, might not ordinarily be considered to be a period of active employment or active service. The effect is that the employer cannot prorate entitlements that are dependent upon length of employment or length of service because the employee was not working during the period of leave.

For example, a contract provides that employees who have provided "two years of active service" are eligible for a Christmas bonus. A two-year employee who was away on pregnancy and parental leave for one of those two years will be eligible for the bonus. (Note: it does not matter if the bonus falls within the definition of wages in s. 1 of the ESA 2000 or not. Any entitlement driven by length of service, length of employment or seniority continues to accrue under this section).

However, the contract further provides that the amount of the bonus is to be calculated as a percentage of wages earned during the last two years. Where the amount of the bonus is calculated as a percentage of wages earned, the bonus could be reduced proportionally to reflect the fact that the employee only worked for part of that period.

Length of employment

The Program has always taken the position that statutory leaves had no impact on an employee's length of employment, because a leave did not sever the employment relationship. The employee remained "employed" during the leave, even though they were not actively at work. Entitlements or rights that were earned after the employee had been employed for a specified length of time were therefore unaffected by the fact that an employee had taken a leave. Section 52(1) confirms this policy position and also precludes prorating rights or entitlements by using language in the contract that attempts to distinguish between "active" and "inactive" periods of employment.

Length of service

Section 52(1) also precludes employers from prorating rights or entitlements that are dependent on the length of an employee's service under a contract of employment. Whereas length of employment is generally understood to mean the length of time elapsed since the date of hire, "length of service" is more likely to mean the period that an employee is providing services to the employer. Where an entitlement under an employment contract is dependent upon length of service, s. 52(1) requires that the time an employee spent on a Part XIV leave be included, even though they were not actually working during the leave period. Contract language that attempts to exclude inactive service from the calculation of length of service will be ineffectual.

Seniority

Seniority is a term frequently used in collective agreements and will often determine such things as order of lay-off or recall, or confer entitlements to job promotions and increases in annual vacation entitlements.

Under s. 52(1), entitlements that accrue through "seniority" under a contract will continue to accrue during periods of Part XIV leave.

Vacation as per Part XI of Employment Standards Act, 2000

Under Part XI of the Employment Standards Act, 2000, vacation is composed of two separate elements – vacation time and vacation pay.

Vacation time:

Vacation time accrues on the basis of completion of a vacation entitlement period. Under s. 33(1), employees whose period of employment on completion of a vacation entitlement year is less than five years are entitled to two weeks of vacation after each vacation entitlement year and employees whose period of employment on completion of a vacation entitlement year is more than five years are entitled to three weeks of vacation after each vacation entitlement year. Under s. 34(2) and (3), employees whose period of employment on completion of a stub period is less than five years are entitled to a pro-rated amount of two weeks of vacation time and employees whose period of employment on completion of a stub period is more than five years are entitled to a pro-rated amount of three weeks of vacation time in respect of the stub period.

Section 33(2) and s. 34(4) provide that inactive as well as active periods of employment be included in the 12-month vacation entitlement year for the purpose of determining an employee's entitlement to vacation time. Consequently, an employee who takes a Part XIV leave during a vacation entitlement year will still have completed 12 months of employment during a vacation entitlement year even if they were not at work for much of that time, as the case may be in the context of a combined pregnancy and parental leave. In addition, the period of time spent on leave will count towards the employee’s period of employment for the purposes of determining the amount of vacation (two or three weeks) to which the employee is entitled.

Vacation pay:

Vacation pay is calculated under s. 35.2 of the ESA 2000 as a percentage of gross wages excluding vacation pay earned in the period during which the vacation time was earned. Employees who are not earning wages (which will include employees on pregnancy and parental leave under Part XIV) will not have earned any vacation pay during their leave.

Example 1

An employee whose period of employment is more than five years is entitled to three weeks of vacation after each year of employment and vacation pay at 6% of gross wages earned in that year. If the employee was on pregnancy and parental leave for all 52 weeks of the year (), they would be entitled to three weeks' vacation time at the end of the year but her vacation pay, calculated as 6% of the wages earned in the year, would amount to zero.

Example 2

The contract of employment provides a greater right or benefit than the minimum standard for vacation by giving the employee four weeks of vacation after each year of employment and vacation pay at 8% of gross wages earned in that year. This greater right is enforced as per s. 5(2) of the ESA 2000. If the employee was on a Part XIV parental leave for 37 weeks of the year, he would be entitled to the full four weeks of vacation time at the end of the year; however, the vacation pay would be just 8% of the wages earned during the 15 weeks the employee was not on leave (because the employee was not earning wages during the 37 weeks of leave).

Vacation time earned through service and vacation pay earned as a percentage of wages

As noted earlier, it is now the policy of the Program that employees who are on Part XIV leave will earn credit for length of service; they are not earning credit for the service itself. In other words, the employee is not treated for all purposes as if they had actually been at work providing service throughout the leave, but only for purposes of those rights that depend upon length of employment or length of service. The impact of this policy change may be seen where vacation time is earned through service during the year rather than "length of service" or length of employment (which would be measured from when service or employment first began).

Example

The contract of employment provides that employees whose period of employment is less than five years are entitled to three weeks of vacation for every year of service (i.e. it is driven by service, rather than "length of service") and accrue vacation pay at the rate of six per cent of gross wages. The employee was on parental leave for 37 weeks in a year.

Vacation time

Because the employee is not providing service during the leave, the employment contract would result in vacation time off being calculated as follows: 3 weeks x (15 weeks worked divided by 52 weeks) = .87 weeks of vacation time accrued.

Although, on its face, the vacation time provisions of the contract of employment might appear at first to provide a greater right or benefit than the employment standard set out in s. 33(1)(a) of the ESA 2000, in our example, the contract does not in fact provide a greater right or benefit. Consequently, the employment standard in s. 33(1)(a) should be applied to provide the employee with two weeks of vacation time for the vacation entitlement year.

Previously, under the former Employment Standards Act, it was the policy of the Program that the employee would be entitled to the full three weeks of vacation time in this example, because the policy was that the employee was to be credited for service during the leave for all purposes, i.e., the employer could not pro-rate the employee's entitlement because they had to be treated as if the employee had actually worked through the leave. The Program's position now under the ESA 2000 is that the employee earns credit for length of service, but not for service per se, i.e., the employee is not treated for all purposes as if they had actually been at work during the leave.

Vacation pay

In this example, the employee's vacation pay entitlement under the employment contract is 6% of the wages he earned during the 52 weeks. This would be a greater right or benefit than the employment standard set out in ESA Part XI, s. 35.2, and thus would prevail. As the employee only earned wages for 15 weeks of the year, his vacation pay would be a little less than one week's pay, that is, 6% of the 15 weeks' wages.

Vacation time and vacation pay earned through service

Some contracts of employment provide for "paid vacations" earned through service. In these contracts, both vacation time and vacation pay are earned together as a function of service. Once again, the new policy of the Program is that employees who are on leave will earn credit for length of service but they are not earning credit for the service itself. In other words, the employee is not treated for all purposes as if they had been actually at work throughout the leave, but only for purposes of rights that depend upon length of employment or length of service. Where both vacation time and vacation pay are earned through service, the determination must be made as to whether the contractual provisions provide the employee with a greater benefit than the employment standards in ESA Part XI, section 33 (1)(a) or section 33(1)(b), section 34(2) or section 34(3) and section 35.2.

Example

An employee is on pregnancy and parental leave for 39 weeks during a vacation entitlement year. The employment contract states that employees are entitled to 1.5 paid vacation days for each month of active service during the year (18 days per year). Under the contract, the calculation of her vacation time for the year in which they took the leave would be as follows: 3 months (i.e. 52 weeks minus 39 weeks = 13 weeks = 3 months) x 1.5 vacation days = 4.5 paid vacation days.

Vacation time:

Because the employee is not credited with actual service during the leave (only "length of service" as per s. 52(1)), the vacation entitlement under the contract is only 4.5 vacation days. Since this is less than what the ESA 2000 provides, the contract will not prevail over the ESA 2000. Consequently, the employment standard in s. 33(1) should be applied to provide the employee with two weeks or three weeks of vacation time for the vacation entitlement year as determined by her period of employment upon completion of the vacation entitlement year.

Vacation pay:

The 4.5 days of vacation pay would likewise have to be compared to the minimum entitlement under the ESA 2000 to determine whether it was a greater right than the 4% or 6% of wages otherwise earned under s. 35.2. In all likelihood it would be, in which case the contractual entitlement would prevail.

In contrast to the above example, it should be noted that there may be situations where the terms of the employment contract provide a greater right or benefit in that they specifically allow the employee on leave to accrue entitlements during a period of leave, that otherwise accrue through service. For example, in Drake International Inc. v Fernandez, 2005 CanLII 25327 (ON LRB) the issue was whether the employee had accrued paid vacation days during a period of leave. The Ontario Labour Relations Board found that issue did not entail an interpretation of the provisions of the ESA 2000 since the arrangement between the employer and employee exceeded the ESA 2000’s entitlements. The Board noted that the employee's letter of hire provided that paid vacation days accrued through months "worked" and the Employee Guide provided that vacation credits accrued based on "service". However, the Employee Guide went on to say that vacation benefits would continue to accrue during maternity/parental leave. As a result, the Board found that the employee accrued both the vacation time off and the vacation pay during the leave. The employer argued that the Employee Guide was intended to refer only to a right to accrue vacation time and that the company's payroll clerk had credited the employee with vacation pay in error but the Board noted that the employer could not demonstrate an occasion where vacation was accrued "correctly". As a consequence, the Board concluded that the specific terms of the contract allowed the employee to accrue 1.25 paid vacation days for each month they were on leave.

Other issues

Two issues that have arisen deal with the impact of leaves of absence on attendance management programs and perfect attendance bonuses. Although s. 52(1) does not impact on these matters, questions often arise about them in this context. The impact of leaves of absence on attendance management programs and perfect attendance bonuses are complex issues where it is often difficult to determine what is required under the ESA 2000.

Perfect attendance bonuses

Many employers have programs whereby employees are awarded a bonus for perfect attendance during the year. How should absences due to a Part XIV leave be treated for the purposes of such programs? Where an employer awards a bonus to employees for perfect attendance, on the one hand, an employee taking a Part XIV leave should not be disqualified from the bonus. Such disqualification would likely be found to be a penalty for having taken the leave and, consequently, a violation of s. 74 of the ESA 2000. On the other hand, it would seem absurd to count the time off on the leave of absence as "perfect attendance". Two ways in which an employer could deal with perfect attendance bonuses in such a way as to avoid difficulty with s. 74 of the ESA 2000 are as follows — note that the examples below are based on the assumption that perfect attendance is determined on a calendar year basis:

Prorated amount for the part of the year the employee worked, both before and after the leave.

For instance, if Jane took a combined 52-week pregnancy and parental leave (note that the entitlement to a combined leave is generally longer — up to 78 weeks) from July 1, 2014, to June 30, 2015, and if she would have been eligible for the perfect attendance bonus prior to her going on her pregnancy leave, then she would be awarded a bonus, prorated for 2014. Similarly, if her attendance from June 30, 2015 to the end of 2015 would entitle her to a bonus (had that been her record for the entire year), then she would be awarded a bonus, prorated, for the months she were in attendance during 2015.

All Part XIV leave absences could be treated in a similar fashion. For example, days taken off as sick leave would not disentitle the employee from the bonus, but the amount of the perfect attendance bonus could be a prorated amount to reflect the fewer number of days in attendance. Or, time taken off as family medical leave would not disentitle the employee from the bonus, but the amount of the bonus could be a prorated amount to reflect the fewer number of days in attendance. This approach was cited with approval by the arbitrator in Fleetwood Canada Ltd. v. Union of Needletrades, Industrial and Textile Employees, Local 1381. In that case, the employer provided a weekly attendance bonus only to those employees who maintained perfect attendance during the week. The union argued that employees who took the previous personal emergency leave (then called "emergency leave") should still be allowed to collect the attendance bonus, pro-rated to reflect the number of days they actually worked in a week if they had otherwise had perfect attendance in that week. The arbitrator agreed with the union's approach, taking the position that disqualifying the employees from the bonus because of personal emergency leave absences was a penalty and therefore, a violation of s. 74 of the ESA 2000.

Extend the period of time considered when determining whether an employee is eligible for a bonus.

If we take the same example as above, the employer could consider Jane's attendance during the six months in 2014 prior to her leave and extend the year for six months after her return. If during that combined 12-month period Jane met the criteria to receive the bonus, they would receive the full amount of the bonus. Note that where the eligibility period is extended in this way, the next eligibility period will have to commence on the date it would ordinarily have commenced, notwithstanding the extension. In other words, while Jane's bonus for the year 2015 will be based on the two periods July 1, 2015, to December 31, 2015, and January 1, 2016, to June 30, 2016, her bonus for the year 2016 will have to be based on the period January 1, 2016, to December 31, 2016, even though there is some overlap. This is because if the starting date of all subsequent eligibility periods is set back six months, Jane would, over the course of her time with her employer, lose out on a possible six months of bonus eligibility; that would constitute a penalty and would thus be prohibited. Other Part XIV leaves would be treated in the same way. For example, if an employee with otherwise perfect attendance took three days of sick leave during the year, then the year during which his attendance would be considered for the perfect attendance bonus would be extended by three days. If an employee with otherwise perfect attendance took eight weeks of family medical leave during the year, then the year during which her attendance would be considered for the perfect attendance bonus would be extended by eight weeks.

It should be noted that although the approaches set out above do not treat the period of an employee's Part XIV leave as actual service, there is no conflict with the requirement in s. 52(1) that the period of leave be included in calculating the length of an employee's service for the purpose of determining his or her rights under an employment contract. An attendance bonus program does not award a bonus based on length of service, but on actual attendance at work. In the examples considered here, the entitlement to the bonus of a 25-year employee would be the same as the entitlement of a two-year employee. Not including the period of leave as actual service for the purposes of the attendance bonus program would not affect the accrual or calculation of the length of the employee's service, nor of any rights the employee has which are dependent upon the length of service.

Attendance management programs

The second issue deals with "attendance management programs". Attendance management programs frequently set out a series of steps of escalating seriousness, up to and including dismissal, for employees who miss too many days of work. Each step in these programs is triggered by absenteeism.

For the reasons set out above in the context of perfect attendance bonuses, attendance management programs would not encounter difficulties with s. 52 of the ESA 2000, because s. 52 does not require that Part XIV leave days be considered days of actual service. The more difficult question is how attendance management programs should treat Part XIV leave days to avoid violating the anti-reprisal provisions in s. 74 of the ESA 2000.

The first, and less problematic, option is to not include any absences due to a Part XIV leave towards the threshold to reach the next step in an attendance management program.

Theoretically, an employer could take a different approach, e.g., the employer would count days absent due to a Part XIV leave toward the threshold to reach the next step in an attendance management program. However, extreme care would have to be taken to ensure that the steps in the program are set out in such a way that an employee is not penalized, intimidated, threatened, or disadvantaged for having taken Part XIV leave days under the ESA 2000. While in theory attendance management programs are non-disciplinary, counting time taken, say, for sick leave under the ESA 2000 in assessing whether an employee's absenteeism rate meets the threshold for entering the initial or a subsequent stage of an attendance management program may be found to be a reprisal for exercising the employee's Part XIV right, depending on the structure of the program. For example, an attendance management program may violate s. 74 if it was structured in such a way that a reasonable person in the shoes of the employee would hesitate to take sick leave days under the ESA 2000 for fear of triggering (or coming closer to triggering) the next stage of the program. In order to avoid difficulty with s. 74, the program would require at minimum that the interviews be conducted in a non-threatening, non-intimidating, non-disciplinary manner; and where sick leave is concerned, that the threshold number of absences be higher than the number of sick leave days permitted under the ESA 2000 and justifiable based on the overall average of absences in a particular workplace, the structure of the attendance management program and the particular circumstances of the individual; and that in the final stages of the program where an employee could be dismissed for innocent absenteeism, the threshold should be much higher than the three sick leave days that an employee is entitled to take under the ESA 2000 — a threshold that could result in dismissal if an employee missed only one or two days beyond the sick leave days covered by s. 50 would very likely be seen as penalizing the employee for having taken the sick leave days. In this regard, the arbitrator's decision in Natrel Inc. v Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local Union No. 674, 2004 CanLII 55036 (ON LA) is relevant, although it was decided in the context of personal emergency leave, which was in force prior to January 1, 2019. In that case, the employer had implemented an attendance management program with the threshold for participation in the program being triggered (at the employer's discretion) by a single absence in excess of a plant average. Personal emergency leave days (then known as "emergency leave" days) were counted as absences for the purposes of the program. One employee was in the program and had been continued in the program for a second three-month period because of a single day of personal emergency leave. The first step of the program was a non-disciplinary interview and a three-month monitoring period with a follow-up letter. Additional absences within the three months could result in a second interview where the employee would be informed of the consequences of additional absences and a requirement that the employee provide a doctor's note for any absences in the next 12 months. If attendance did not improve in the three months following the second interview there would be a third interview and the employee would be required to provide a medical assessment of their fitness to perform their duties. A poor prognosis for regular attendance or where there was continued unsatisfactory attendance could result in termination. The arbitrator concluded that continuing the affected employee in the attendance management program and requiring him to produce a medical certificate for every absence by reason of having exceeded the threshold because of taking a day of personal emergency leave would constitute a reprisal under section 74 of the ESA 2000.

Likewise, an attendance management program that counts pregnancy, parental, family caregiver, family medical, critical illness, crime-related child disappearance, child death, domestic or sexual violence, family responsibility, bereavement, organ donor, or reservist leave absences towards the threshold to enter into the next stage would be problematic in most cases. Employees who take such leave would presumably exceed the threshold number of days to move to the next step in any attendance management program. To bring such employees in for an interview to discuss their attendance, where most or all of their absence was due to being on leave, could very well be seen as a reprisal for having taken the leave.

The first, less problematic, option described earlier (that is, to not consider any absences due to a Part XIV leave as absences that count towards the threshold to the next stage of an attendance management program) would avoid the challenges of structuring attendance management programs in such as way as to avoid violating s. 74 of the ESA 2000, and would also give consistent treatment to all Part XIV leaves.

Exception – section 52(2)

Section 52(2) provides that, despite s. 52(1) (which provides that time spent on Part XIV leave counts for purposes of length of employment, length of service and seniority), time spent on Part XIV leave will not count towards the completion of probationary periods.

A probationary period typically means a term at the front end of an employee's employment during which his or her suitability as a permanent staff member can be assessed. As well, a period during which an employee is being assessed in a "new" position, where satisfactory completion of the assessment period will result in the "permanent" placement of the employee in that new position, is also considered to be a "probationary period" under s. 52(2). While the beginning of the probationary period in this case does not coincide with the start of employment, it does coincide with the start of a new contract, and for that reason can be considered to be a "probationary period under an employment contract".

It should be noted that periods of leave do not count towards the completion of "disciplinary probationary periods", as such periods do not coincide with the start of employment or an employment contract and so may be seen as being driven by actual service rather than "length of employment, length of service or seniority". Employees do not earn credit for actual "service", as opposed to length of employment, length of service or seniority while on leave.

Section 52.1 – Leave taken in entire weeks

This provision came into force on October 29, 2014. It establishes a rule relating to leaves that are required to be taken in periods of entire weeks. At the time of writing, only Family Medical Leave must be taken in periods of entire weeks. Accordingly, s. 52.1 only applies to Family Medical Leave. See the discussion of the effect of s. 52.1 on the Family Medical Leave entitlement in Employment Standards Act Part XIV, section 49.1(7).

Section 53 - Reinstatement

Reinstatement - section 53(1)

1. To position most recently held

At the conclusion of an employee's leave under this Part, the employer must reinstate the employee to the position he or she held at the commencement of the leave. In contrast to some of the earlier pregnancy leave provisions, the employee must be reinstated to the position he or she held before the leave if it still exists. In Car Park Management Services Limited v Sze (April 30, 1996), ESC 96-87 (Muir), a decision under the former Employment Standards Act, the employer argued that the employee's position no longer existed because some aspects of the work had been computerized while she was on leave and the employee did not have computer training. See also Imapro Corporation v Fawcett (September 14, 1995) ESC 97-43 (Randall) in which the employer reinstated the employee to a new position because he intended to terminate her with notice contrary to s. 44 of the former Employment Standards Act (corresponding to s. 74 of the Employment Standards Act, 2000). Her previous position required long-term involvement on projects that would have run longer than the notice period. In both of the above decisions, the employer was found to be in violation of the obligation to reinstate under the former Employment Standards Act.

The option of reinstating the employee to a comparable position is available only if the employee's own position is no longer there. In Gorrell, Grenkie, Leroy and Remillard v Vaughan (November 22, 1993), ESC 3296 (Novick), a decision under the former Employment Standards Act, the referee stated that the employer was obliged to reinstate the employee to her own position and that the employee was entitled to refuse an offer of a comparable position (at another office) because her own position still existed. An employer may argue that an employee's position no longer exists because another person (either a reassigned employee or a replacement) is now performing his or her work. This is not a valid reason for not reinstating the employee to the position previously held. If the job is still there, if the same work is being done, the employee has a right to be reinstated to perform the same work, regardless of the fact that another person is now, and has been, performing it.

With respect to the question of "what is the position the employee most recently held", see the following decisions under the former Employment Standards Act: Canadian Holidays Ltd. v Bartol (July 31, 1995), ESC 95-147 (Novick); Woodbridge Inoac Inc. v Frayne (May 2, 1995), ESC 95-86 (Novick); and Martel v 785364 Ontario Inc. o/a Sunny's Restaurant (June 9, 1995), ESC 95-109 (Novick). Also see O.P.S.E.U. Local 458 v Open Hands Inc. (unreported) where the Divisional Court found that the employer violated the former Employment Standards Act when it reinstated an employee to the same job she held before her leave but at a different location.

It should be noted that in determining "what is the position most recently held" that the terms of the employment contract (whether or not it is in writing) are relevant and that the duties and functions being performed (or the location of their performance) prior to the commencement of the leave are not necessarily determinative of the issue.

For example, in a decision under the current Act, the question of "what is the position most recently held" was considered by the Court of Appeal in Elementary Teachers Federation of Ontario v Toronto District School Board, 2005 CanLII 36712 (ON CA). In that case, a board of arbitration had dismissed a grievance arising from the reinstatement of a teacher returning from pregnancy and parental leave. The employee had been teaching Senior French when she went on her leave and was informed that she would be teaching Senior Science when she returned. She declined the assignment. Her collective agreement provided that staffing was to be determined for each year by a process requiring the principal to consider the preferences, abilities, qualifications and experience of the teachers in assigning teaching duties. Her union argued that she should have been reinstated to the French teaching position she held prior to going on leave but the board of arbitration concluded that under the collective agreement the teacher had no right to a particular teaching assignment from year to year or a reasonable expectation to continue teaching the same subject every year. In other words, when the terms of the employment contract (collective agreement) were considered, the employee’s position was not that of "a Senior French teacher" but more broadly that of "a teacher". Despite the fact that she had been teaching French just prior to the commencement of her leave, she did not have a right to reinstatement as a Senior French teacher. The union sought judicial review but the application was dismissed by Divisional Court in Elementary Teachers' Federation of Ontario v Toronto (District) School Board, 2004 CanLII 1652 (ON SC). On appeal of that decision, the Court of Appeal affirmed the Board's decision as reasonable.

In some instances, a pregnant employee during the period prior to her leave is unable to perform her normal job due to the pregnancy. Therefore, the employee is given another job for several weeks before she goes on leave. At the end of her leave, the employee must be reinstated to her original, normal job. The employer’s offer of the other job on a temporary basis was due to the employer’s duty to accommodate under the Human Rights Code, RSO 1990, c H.19.

Section 53 governs the rights of employees after a leave has been taken. There can therefore be no violation of s. 53 before an employee takes a leave. There can, however, be a violation of s. 74 before an employee takes a leave. See the discussion of s. 74 in ESA Part XVIII of the Manual.

Although not directly related to s. 53, (as it is not truly a "reinstatement" issue), one issue that arises frequently is whether an employer is obligated to provide an employee with a part-time position, rather than his or her earlier full-time position, at the employee's request. Clearly, there is no such obligation under the ESA 2000.

Where an employer and employee have reached a pre-leave agreement that the employee will return only on a part-time basis, and the employee changes his or her mind and wants his or her previous position back, Program policy requires that he or she must be given it back. See also Goode v S&E Management Ltd. (October 29, 1996), ES 96-227 (Novick) in which the claimant, before the expiry of her leave, requested that upon her return she be placed in a different position which allowed for better hours, or alternatively, a further four-month leave of absence. The employer was found to be in violation of the former Employment Standards Act by having refused and terminated the employee without allowing her the opportunity to exercise her right to be reinstated to her previous position. The s. 53 protection gives the employee the right to be reinstated to her previous position upon the conclusion of her leave. Any alternate arrangement that does not allow her to exercise that right or that excuses the employer from meeting its obligation to reinstate (such as agreement, prior to the leave, to reinstatement to part-time duties) is seen as a contracting out of the s. 53 employment standard, and hence, by virtue of s. 5(1) of the Act, is null and void.

One issue related to reinstatement to the "same" position concerns the application of the Ontario Human Rights Code provisions that prohibit discrimination on the basis of "family status" and impose a duty of accommodation on the grounds of family status. An employee who seeks such accommodation (for example, an employee may request a change in her shift schedule or a reduction in hours because of difficulties with child care arrangements etc) and who believes he or she has experienced discrimination may be referred to Ontario's Human Rights Legal Support Centre for assistance.

2. To a comparable position

If the employee's position no longer exists, the employer must reinstate the employee to a position comparable to his or her former one. The employer can reinstate the employee to a comparable position only if the employee's former position no longer exists; if the former position still exists, the employer has no choice but to reinstate the employee to it. It should also be noted that there is no positive obligation on the employer to create a comparable position in circumstances where the employee would otherwise have been terminated for reasons completely unrelated to the leave. For example, an employer will be obliged to reinstate to a comparable position where the position most recently held by the employee has been modified to the extent that it could no longer be considered the same position, and the employee would have otherwise moved into the "comparable" position had he or she not been on leave. Another example is where an employee's position has been eliminated, and the employee would have been transferred to the same position at a different location had the employee not been on the leave. See discussion on s. 53(2) below.

In order to meet the obligation to reinstate an employee to a comparable position, it is clearly not sufficient merely to offer a position with the same wages and benefits see C.L.C. (Can Workers' Union, Local 354) v American Can Canada Inc., 1983 CanLII 935 (ON LRB) and Hobbs and Jaciw Investments Limited v Reed (July 11, 1978), ESC 533 (Egan), both cases under the former Employment Standards Act). Rather, one must look at a number of factors, including all the aspects of the new, allegedly comparable job that might make it more or less appealing than the claimant's original job, viewed objectively from the perspective of an employee in a similar position to that of the claimant.

The factors to consider, as originally enunciated by Referee Picher in C.L.C. (Can Workers' Union, Local 354) v American Can Canada Inc. and adopted by the Program are:

Location of Job: If the "comparable" work offered by the employer exists in another city or town, the work may or may not be comparable. For example, if commuting would be impossible or would involve a substantial increase in travel time, the work is unlikely to be comparable. In determining whether the work is comparable, the officer should consider the circumstances of the employee in question. The test to be applied is how a reasonable person in the employee’s circumstances would view the change. For example, commuting may be possible for an employee with a driver’s license, but impossible for an employee without one. It should also be noted that even if the employment contract permitted the employer to transfer the employee to another city and, assuming no negative changes in the terms and conditions of employment, such a transfer therefore constituted "reasonable alternative employment" for the purposes of paragraph 5 of s. 2(1) of O Reg 288/01, it does not necessarily mean that the obligation to reinstate the employee to a "comparable" position under this section has been satisfied.
Hours of Work: including time of the day and the length of the working day; any shift or weekend work.
Quality of Working Environment: office vs. warehouse vs. store vs. factory; degree of luxury; overall atmosphere; privacy vs. group surroundings; comfortable vs. spartan conditions.
Degree of Responsibility: including degree of independence and supervision; degree of initiative required; decision-making authority; ability to input own taste or influence; amount of clerical or secretarial functions; job satisfaction.
Job Security and Possibility of Advancement: what was/is the likelihood of the job continuing to exist, and the opportunity to progress from that job to a higher position; relationship of background, training and education of employee to position; and development of proper skills for advancement in each position.
Prestige and Perquisites: "atmosphere and trappings of an executive" if relevant – e.g., own office; name and title on organization chart; personal or position profile – e.g., opportunity for broader contact with other management and personnel; own business card, expense account, administrative assistant; signing authority; social privileges; immediate supervision or instruction of others.

The importance and weight to be given to each of the foregoing factors will vary from case to case, depending on the particular facts in each situation. The new position may not be quite as attractive as the old job in all respects, but it will be considered a comparable position if, when the various factors are considered in their totality, the position is qualitatively similar, if not superior, to the job the employee had before he or she went on leave. A test of what is comparable is an objective test, based on what a "reasonable employee" in the same circumstances would think.

For example, the employee in C.L.C. (Can Workers' Union, Local 354) v American Can Canada Inc. had previously held an executive position as Communication Co-ordinator. Upon her return at the end of her leave, she was given work consisting mainly of clerical tasks. Although she incurred no loss in wages, benefits or seniority, her new position involved a marked decrease in the degree of responsibility, prestige and perquisites as well as a loss in job security. In addition, her working environment, originally a private office with access to a personal administrative assistant, deteriorated to a secretarial corner. In light of the foregoing, it was found that the new position was not of a comparable nature and compensation/reinstatement was ordered.

A pre-existing job evaluation system may be relevant but is not determinative of the comparability of the two positions. As the referee stated in Reed Inc. v Nidd (December 23, 1986), ESC 2002 (Mitchnick), another decision under the former Employment Standards Act, the evaluation system may be relevant as an "objective" factor. However, "subjective" factors such as humiliation, embarrassment and loss of prestige must be taken into account as well, but from an objective viewpoint. In other words, for example, would a "reasonable employee" have been humiliated in the same circumstances?

Furthermore, it may not be sufficient merely to offer the same wage where the wage range of the new position is inferior. For example, a new position at $25,000 per year at a $20,000 to $25,000 range may not be considered comparable to the wage of $25,000 at the former position that had a range of $24,000 to $29,000.

To illustrate further, in Bronson Bakery Ltd v Melo and Scott (November 27, 1985), ESC 1992 (Fraser), a decision under the former Employment Standards Act, neither the somewhat lesser degree of responsibility nor the minor variance in hours of work were sufficient of themselves to render the two jobs incomparable. There were, however, significant reductions in prestige and quality of working environment. Having regard to all of these factors, in sum, the referee determined that the employer was in breach of the reinstatement obligations.

It should be noted that despite what appears to be an emphasis in the cases on the employee’s perspective with respect to these factors, the test is objective, that is, how would a reasonable employee in the same circumstances have viewed the situation?

For example, in C.L.C. (Can Workers' Union, Local 354) v American Can Canada Inc., Referee Picher indicated that the employee found the change of geographical location (from Etobicoke to Brampton) significant, but he felt that there was no substantial difference, on that issue alone, and particularly so in light of the fact that the new position may have been even closer to her residence. However, he saw that her concerns on the issue of "location" were in fact more related to "Quality of Working Environment" and the positions were clearly not comparable on that issue. This matter is more directly dealt with in Bronson Bakery Ltd v Melo and Scott where the employee was reinstated to a retail position as opposed to her previous office position. The employer argued that most people would prefer the open environment of the store and dealing with the public and thus submitted that most people would have a different subjective preference from the claimant. However, the referee found that the employee’s viewpoint had a "reasonable objective basis", i.e., that office work was generally seen to have more prestige than retail sales and a higher quality working environment. Accordingly, there should be a "reasonable objective basis" for a subjective viewpoint on the factors considered.

Special rule for reservist leave - ss. 53(1.1) and (1.2)

Unlike other types of Part XIV leaves, section 53(1.1) allows the employer of an employee who has been on a reservist leave to postpone the employee’s reinstatement until:

A prescribed day; or
If no day is prescribed, the later of,
- The day that is two weeks after the day on which the leave ends, and
- The first pay day that falls after the day on which the leave ends.

At the time of writing, there has been no prescribed day. As such, an employer may postpone an employee's reinstatement following a reservist leave until the later of two weeks after the day on which the leave ends or the first pay day after the day on which the leave ends. The employer may postpone the reinstatement in accordance with s. 53(1.1) regardless of the length of the employee’s leave.

Therefore, although s. 50.2(9) requires an employee who has taken reservist leave to provide written notice to the employer of the date when he or she intends to end the leave, s. 53(1.1) enables the employer to actually postpone the employee’s reinstatement for two weeks following the date set out in the employee’s notice or the first pay day that falls after that date, whichever is later.

Section 53(1.2) states that during a period of postponement, the employee is deemed to continue to be on a reservist leave for the purposes of s. 51.1 (leave and vacation conflict) and s. 52 (length of employment).

Note that pursuant to s. 51(4), an employer is not required to continue the employee's participation in the types of benefit plans listed in s. 51(2) (if applicable) during a period of reservist leave. However, should the employer decide to postpone an employee’s reinstatement date as permitted by s. 53(1.1), s. 51(5) provides that the employee is entitled to continue to participate in benefit plans pursuant to ss. 51(1) and (2) and the employer is required to make contributions to such plans as required under s. 51(3), during the postponement period.

Exception to reinstatement obligation - s. 53(2)

The right of reinstatement under s. 53 is not absolute. The reinstatement provisions are meant to ensure that an employee who goes on Part XIV leave is in the same position she or he would have been in if she or he had not gone on leave. The provisions are not meant to give a greater right to employees on leave. Where the employer has reasons to terminate an employee’s employment that are completely unrelated to the fact that the employee went on a Part XIV leave, reinstatement will not be required. The employer has the onus of proving that the termination was totally unrelated to the fact that the employee took the leave.

The same principle applies with respect to economic downturns or other reasons that lead to layoffs. If at the end of a leave, the position the employee most recently held still exists but is inactive (for example, because the business is not operating or is operating at lower than usual capacity and does not currently have any work for that position), there is no violation of s. 53 where the employer reinstates the employee into his or her most recently held position and then immediately places the employee on a temporary layoff (so long as the layoff does not constitute a reprisal, e.g. if any part of the reason for the layoff was because the employee took the leave). For practical purposes, in the situation where the position is inactive at the time the employee’s leave is over, the employer only notionally reinstates the employee; the employee does not need to physically return to the workplace for a shift nor does the employee need to complete any amount of work before being told that he or she is laid off.

As an example, this situation may have arisen at the end of the “COVID-19 period” when an employer who was still experiencing economic losses was required to reinstate an employee who had been deemed to be on unpaid infectious disease emergency leave per O. Reg. 228/20. For a discussion about employee reinstatement from the “deemed leave” see s. 4 of O. Reg. 228.

While s. 53(2) was introduced in the ESA 2000, it was intended merely to codify Program policy that existed under the former Employment Standards Act. While the cases cited in this section were all decided under the former Employment Standards Act, 2000, the principles enunciated in these cases are equally applicable to the ESA 2000.

In determining whether the termination is in contravention of s. 53, the test is, "Would this employee have lost his or her job if he or she had never gone on Part XIV leave?"

This test was used in C.L.C. (Can Workers' Union, Local 354) v American Can Canada Inc.where the referee noted that absent her leave, the employee would still be in her former function. The referee referred to her pregnancy as a "catalyst" for the decision to change the employee's position. See also Wyeth-Ayerst Canada Inc. v Dowd (January 7, 1998), 2466-96-ES (ON LRB), where a bona fide restructuring was held not to prove the employer's case because the evidence disclosed the employee's leave had been a factor in the decision to terminate her. See also Jackson v Elizabeth Arden Salons of Canada Limited (October 20, 1995), ESC 95-175 (Bradbury).

An employer cannot refuse to reinstate an employee where it was discovered during the leave that the employee was in fact dispensable, as it would be the occasion of the leave that gave rise to the reason for the termination (reasoning used in C.L.C. (Can Workers' Union, Local 354) v American Can Canada Inc.). This situation is often encountered where the employer determines during an employee's leave that the operation runs more smoothly without him or her or the temporary replacement performs more satisfactorily. A termination under these circumstances will be a violation, since the purpose of Part XIV of the Act is to ensure that the employee does not "lose out" in the workplace by reason of a Part XIV leave.

The fact that reinstatement at the termination of the leave is at an inconvenient or difficult point in the employer's cycle of operations (e.g., in the final few weeks of a teaching term for a teacher) is not a legitimate basis for non-reinstatement. Clearly, had the employee not gone on a leave, under normal circumstances, he or she would have continued to have been employed.

Again, the exception in s. 53(2) applies only where the reasons for not reinstating were entirely unrelated to the leave.

However, if the reason for the failure to reinstate would have resulted in a termination even if the employee had not gone on leave, there is no violation under s. 53(1). For instance, where the employer undergoes a downsizing or restructuring of its business, there would be no obligation to reinstate if the employee would have lost his or her job regardless of whether he or she had gone on leave. See Littlewood v Birchcliff Heights Child Care Centre (March 27, 1997), 2882-96-ES (Misra), Rahman v York Condominium Corporation 506, 1999 CanLII 19489 (ON LRB), and Singh v George Kent Home Improvements Limited (January 18, 1996), ESC 96-09 (Muir). See also Nygard International Ltd. v Thornton (October 12, 1994), ESC 93-154A (Muir), where an employee is guilty of misconduct that would justify her dismissal, she need not be reinstated.

It should be noted however that even where there is no obligation to reinstate, there may in some situations be an issue of reprisal under s. 74. For example, if it is demonstrated that but for being on the leave, the employee would have been given a choice between accepting termination or being offered another position with the same employer, albeit one that is not comparable with the original position, the employee may be found to have been "penalized" because she had exercised a right to leave - despite not having a right to be reinstated to her job or to a comparable position.

When an employee is hired on a fixed-term contract and the term expires during her leave, the employment relationship generally comes to its natural conclusion with the expiry of the term. In such cases, the reasons for not reinstating are entirely unrelated to the leave and so the employer has no obligation to reinstate under s. 53(1). The employee's employment simply ends when the contract expires. (However, if the evidence showed that the employer chose not to consider the employee for a contract renewal because she was on a leave, that decision not to renew could nevertheless constitute a reprisal under s. 74.)

Where legitimate grounds do exist, the employer may terminate an employee during his or her leave in compliance with Part XV of the Act; the employer need not reinstate and then dismiss the employee. Under the former Employment Standards Act, there were two conflicting lines of authority as to whether the employer is required to pay wages to employees who are entitled to notice of termination, if they are on leave of absence (or otherwise not available to work the notice period for reasons personal to themselves). One line of authority has interpreted the termination provisions in the former Employment Standards Act and regulations as in most instances requiring the employer to pay wages to employees who are entitled to notice of termination but who do not make themselves available to work the notice period for reasons personal to themselves. See MacMillan Bathurst Inc. v Fox (June 13, 1985), ESC 1893 (Egan), Maple Leaf Foods Inc. v Alejandro, 1999 CanLII 2908 (ON CA) and Horizon Poultry Products Inc. v Roth (February 2, 1995), ESC 95-53 (Randall). The second line of cases took the view that employees not making themselves available for work during the notice period ought not be entitled to wages during the notice period. See St. Joseph's Health Centre of London v Vanderwerf (February 10, 1992), ESC 2982 (Novick) and Pioneer Youth Services (Toronto) Inc. v Fitzpatrick, 2000 CanLII 4665 (ON LRB). Although both viewpoints have received some support from the courts on judicial review, it is the Program's position that the better interpretation of the termination provisions is found in the MacMillan Bathurst Inc. v Fox and Maple Leaf Foods Inc. v Alejandro line of cases.

Section 60(1)(b) of the Act provides that the employer shall pay to the employee the wages to which the employee is entitled to receive during the period of notice, "which in no case shall be less than his or her regular wages for a regular work week." Further, s. 61 of the Act provides that an employer may terminate the employment of an employee without notice, but only if it pays termination pay equal to the amount the employee would have been entitled to receive under s. 60 had notice been given, which, as summarized above, provides that the amount will in no case be less than the regular wages for a regular work week.

The purpose underlying the notice of termination provisions is to give employees some breathing room during the notice period (or with the pay in lieu of notice) to reorder their affairs. To interpret the termination provisions in a way that would place employees who are on a leave in a worse position than they would have been in had they not taken the leave would be contrary to the intention of the Act. Consequently, it is Program policy that unless the employee is otherwise disentitled to termination pay (i.e., by virtue of s. 2(1) of O Reg 288/01), the employer must pay the required wages even if the employee is on leave. The above interpretation follows the reasoning upheld by the Court of Appeal in Maple Leaf Foods Inc. v Alejandro and by the Divisional Court in MacMillan Bathurst Inc. v Fox. Although those cases (which were decided under the former Employment Standards Act) dealt with workers' compensation and sick leave, respectively, the principles are relevant to Part XIV leave. See ESA Part XV ("Termination and Severance of Employment") for a discussion of this issue. See Horizon Poultry Products Inc. v Roth for a decision under the former Employment Standards Act concerning an employee dismissed while on pregnancy/parental leave. Note that Pioneer Youth Services (Toronto) Inc. v Fitzpatrick, also a decision under the former Employment Standards Act, followed the opposing line of cases to find that where an employee is terminated for reasons unrelated to her pregnancy or pregnancy leave and the period of notice that is given coincides with her pregnancy leave, she is not entitled to be paid during the notice period. This decision is contrary to Program policy.

Where legitimate grounds to terminate the employment relationship exist and severance pay is owing, it is Program policy that the "regular work week" that is used to determine the amount of severance pay owing is the employee’s "regular work week" that he or she had before the leave began.

Sham reinstatement

Although s. 53(1) requires reinstatement of the employee, it does not address firings post-reinstatement. Protection in this regard is offered by the Program’s position that a "sham reinstatement" will be considered to be no reinstatement at all, and thus a violation of s. 53(1). The right to a Part XIV leave and reinstatement thereafter would be a farce if the employer could get away with firing the employee immediately following a token reinstatement. In Cole v Coates (June 30, 1982), ESC 1241 (Bigelow), although no clear reasons were given by the referee, an employee who was terminated one week after reinstatement was compensated for the violation of her rights under the reinstatement provisions. Clearly, the longer the employee is back at work, the more difficult it is to identify a "sham reinstatement".

Further protection against post-reinstatement firings is provided by s. 74 of the Act, which prohibits employers from dismissing or otherwise penalizing an employee because he or she, among other things, takes a Part XIV leave.

Wage rate - s. 53(3)

Section 53(3) sets out the wage rate that an employee reinstated under s. 53(1) is entitled to receive. This rate is the higher of the rate he or she earned before the leave began, and the wage rate the employee would be earning had he or she continued to work and not gone on leave. The latter provision would apply, for example, if the employee would have advanced to a higher grade in the pay scale for his or her position because he or she had been employed for the requisite amount of time. (For example, if there is a grid that provides that an employee's wage rate increases by $0.50 per hour after each of the first five years of employment, and an employee who had been earning $25.00 commences a combined pregnancy and parental leave of one year at the point at which she had been employed for two and one-half years, she would be entitled to a rate of $25.50 when she resumed working at the conclusion of her leave. It would also apply if a union negotiates a pay raise for employees in the bargaining unit it represents. (For example, if the employer grants an across-the-board increase of $1.20 an hour for all office employees that took effect while an employee who works in the office was on leave, that employee would be entitled to earn the increased rate when he or she returned from leave.)

The purpose behind this provision is to prevent an employer from denying a reinstated employee wage increases that, from an objective standpoint, would inevitably have been given to him or her during the time that he or she was on leave had he or she instead continued working. It was not intended to give an employee a right to a wage increase where it is entirely speculative as to whether he or she would have received the increase had he or she continued working.

For example, an employee's contract of employment might provide for a performance review every year in the month following the anniversary of his or her date of hire, with the result of that review determining whether he or she would receive a merit increase. If an employee was hired on June 15, 2010, received favourable performance reviews and, in consequence, merit increases in July of 2011 and 2012, and then went on leave from September 15, 2012, to September 14, 2013, subsection 53(3) does not entitle her to a merit increase immediately upon her return to work on September 15, 2013, even though in the ordinary course she would have had a performance review in July of 2013 that probably would have resulted in a merit increase (based on what happened after her performance reviews in earlier years). This is because the merit increases were not automatic; whether she would have received a merit increase had her performance been reviewed in July of 2013 is conjectural.

Although in the above example there is no entitlement to a merit increase upon the employee's return to work, the employer would be required to schedule a performance review (and provide a merit increase if the results of that review so indicated) in such a way that the employee was not penalized for having exercised her right to take leave; otherwise, there would be a violation of s. 74 of the Act. There are two ways in which the employer can do this and avoid such a violation. The first would be to provide the employee with a review once her post-leave service, when added to any pre-leave service that had not been the subject of a review, equalled the period that would entitle her to a review. Thus, using the example from the preceding paragraph, where the employee is entitled to a review after each 12 months of service and had accumulated three months of service credits towards the 12 months before going on leave, the employer would have to give her a performance review following the completion of a further nine months of service following her return. The further nine months would be completed on May 15, 2014, and so the review would take place in June of 2014; subsequent reviews would take place in June of each year, rather than in July. Alternatively, the employer could give the employee a performance review after the employee returned to work, using what would have been the usual review period of June 15, 2012, to June 14, 2013, but (assuming a favourable review) granting the employee a pro-rated, rather than full, merit increase, based on the fact that she had worked for only one-quarter of that period.

This provision was also not intended to insulate employees from the effects of negative economic downturns at their workplace such as cuts to wage rates that happened during their leave due to their employer’s economic circumstances. This means that while an employer is required to pay a reinstated employee the wage rate the employee most recently earned (or the rate the employee would have earned had the employee worked through the leave, if that is greater), this provision does not prohibit employers from reducing the employee’s wage rate immediately upon reinstating the employee, either permanently or temporarily (so long as reduction does not constitute a reprisal, e.g. if any part of the reason for the reduction was because the employee took the leave). A unilateral reduction of an employee’s wages may, depending on the circumstances, constitute a constructive dismissal and if the employee resigns in response to the reduction within a reasonable time, the employer will be considered to have terminated (and severed) the employee’s employment under the ESA. (Note, though, temporary wage reductions by the employer for reasons related to did not constitute constructive dismissal under the ESA if they occured during the defined “ period” (March 1, 2020 – July 30, 2022) – see O. Reg. 228/20 for details.)

Section 53.1 – Leaves apply separately

Leaves apply separately – section 53.1

Section 53.1 provides that an employee's entitlement to any Part XIV leave is in addition to any entitlement they may have to any other Part XIV leave. This includes pregnancy leave, parental leave, family medical leave, family caregiver leave, child death leave, crime-related child disappearance leave, critical illness leave, domestic or sexual violence leave, sick leave, family responsibility leave, bereavement leave, organ donor leave, declared emergency leave and reservist leave.

This provision was added to the Employment Standards Act, 2000 effective January 1, 2019 by the Making Ontario Open for Business Act, 2018. Prior to January 1, 2019, certain individual leave provisions contained similar language to make clear that Part XIV leaves apply independently. With the inclusion of section 53.1, those individual provisions were no longer necessary and were repealed. The wording “for greater certainty” is used because the Employment Standards Program has always taken the position that an employee’s entitlement to a Part XIV leave is independent from his or her entitlement to any other Part XIV leave; this new provision simply codifies that principle.

An employee’s eligibility for more than one leave will depend on the circumstances giving rise to the absence. Take, for example, an employee whose minor child is critically ill with a serious medical condition and has a significant risk of death within 26 weeks. The employee could be eligible for critical illness leave (because the minor child is critically ill), family caregiver leave (because the child has a serious medical condition), family medical leave (because the child has a serious medical condition with a significant risk of death within 26 weeks), and family responsibility leave (because the child has an illness, injury or medical emergency). Taking into account the statutory requirements for each leave, the employee is free to decide when to take each leave and the order in which they’re taken.

Footnotes

footnote[2] Back to paragraph Section 52.1, which applies to family medical leave (since that leave is a leave that must be taken in periods of entire weeks) provides that an employee who ceases to provide care or support before the end of a week is entitled to stay on family medical leave for the rest of the week and can return to work before the end of the week only if the employer agrees. In contrast, in the case of critical illness leave, because section 52.1 does not apply, an employee who ceases to provide care or support before the end of a week is required to return to work and the employer has no right to prevent the employee from returning to work.
footnote[3] Back to paragraph This is the meaning of the reference in subsection 49.4(14) to the “52-week period described in subsection (9)”. It does not mean that the first certificate must have specified a care or support period of 52 weeks or longer. Among other things, this also means that if a medical certificate obtained by an employee specified a period of less than 37 weeks, but the employee then obtained a second medical certificate that specified a longer period than was specified in the first certificate, the employee could extend the leave or take a new leave, provided that the total amount of leave taken did not exceed 37 weeks and that the leave ends no later than the last day of the 52-week period that begins on the earlier of (a) the first day of the week in which the first certificate was issued and (b) the first day of the week in which the minor child became critically ill.
footnote[4] Back to paragraph Note: Whether or not criminal charges were laid as a result of a report made to the police by an employee would not be a relevant consideration under this paragraph; the process of seeking legal enforcement assistance would be considered a valid purpose to take the leave.
footnote[5] Back to paragraph Although section 10(2)(a) refers to all leaves of absences under Part XIV, it must be noted that s. 51(4) provides specifically that employees on reservist leave do not continue to participate in the plans listed in section 51(1). It is the Programs position that section 10 of Ontario Regulation 286/01 cannot be used to provide a right to such plans to those employees. However, where an employer provides other types of benefit plans (other than the plans enumerated in section 51(2)), to employees on a leave other than a leave under Part XIV (for example, education leave), then section 10 would operate to entitle employees on a reservist leave to participate in those other plans.

Updated: April 25, 2023

Published: July 19, 2018