Employment Rules Module 4 – Leaves of Absence - CANADIAN FRANCHISE ASSOCIATION

An employer who has been employed by an employer for at least two consecutive weeks is entitled to a leave of absence without pay because of a personal illness, injury or medical emergency.

Length of Leave

An employee’s entitlement to sick leave is limited to a total of three days in each calendar year.

Use of Leave Days

If an employee takes any part of a day as a sick leave, the employer may deem the employee to have taken one full day of leave on that day.

Notice Requirements

An employee who wishes to take sick leave must advise their employer that he or she will be doing so. If an employee must begin sick leave before advising their employer, the employee shall advise the employer of the leave as soon as possible after beginning it.

Acceptable Evidence

An employer may require an employee who takes sick leave to provide evidence reasonable in the circumstances that the employee is entitled to sick leave.

Sick Leave Taken Under Employment Contract

If an employee takes paid or unpaid leave of absence under an employment contract in circumstances which he or she would have also been entitled to take sick leave, the employee is deemed to have taken sick leave. This can also be the case where the employee only uses part of the day as an absence under their contract of employment. It can also be counted as a full sick leave day.

Leaves of Absence and EI Benefits

Employees taking leaves of absence under some of the leaves outlined in this section may be eligible to receive EI benefits during the period of their leave. An employee eligible for these benefits will need to have his or her Record of Employment issued to them promptly in order to apply for these benefits.

Pregnancy/Parental Benefits;Family Caregiver Benefits (adult/child); andCompassionate Care Benefits.

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Pregnancy Leave

Pregnant employees have the right to take pregnancy leave up to 17 weeks unpaid time off work.

Who Qualifies?

Any full-time, part-time, permanent or term contract employee:

Who is pregnant;Whose employer is covered by the ESA; andWho started her employment at least 13 weeks before the expected due date.

Example:

Fatima began her employment 15 weeks before her due date. Soon after starting her new job, she was off sick for five weeks. Fatima is eligible for pregnancy leave because there are at least 13 weeks between the date her employment began and her due date. The fact that she did not actually work 13 weeks is irrelevant.

NOTE: 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 employer has no obligation to reinstate the employment after the leave.

Start Date – Pregnancy Leave

Earliest: 17 weeks before the employee’s due date.

Exception:

when an employee has a live birth more than 17 weeks before the due date, she will be able to begin pregnancy leave on the date of the birth.

Latest: Baby’s due date.

Length of Pregnancy Leave

The maximum is usually 17 weeks. However, there is an exception if an employee has taken 17 weeks, but is still pregnant. Once the leave has started, it must be taken all at once.An employee may decide to take a shorter leave if she wishes. If an employee returns to work for the employer from whom she took the leave, even if it is only part-time, under the ESA she gives up the right to take the rest of her leave.

Premature End to Pregnancy Leave

For miscarriages and stillbirths:

If this occurs more than 17 weeks before her due date, the employee is NOT entitled topregnancy leaveIf this occurs within 17 weeks of the due date, the employee is eligible for pregnancy leave, thelatest date is date of miscarriage or stillbirth.Leave ends on the date that is the later of:17 weeks after the leave began; or12 weeks after the stillbirth or miscarriage.

Stillbirth example: Wai began her pregnancy leave 15 weeks before her baby was due. On her due date she had a stillbirth. The ESA provides that the pregnancy leave ends on the date that is the later of 17 weeks after the leave began or 12 weeks after the stillbirth. In this case, the later date is 12 weeks after the stillbirth. Wai can stay off work for up to 12 more weeks after the stillbirth, for a total of 27 weeks of pregnancy leave.Miscarriage example: Hélène began her pregnancy leave 15 weeks before her baby was due. One week later (one week into her pregnancy leave) she had a miscarriage. The law indicates that her pregnancy leave ends on the date that is the later of either 17 weeks after the leave began or 12 weeks after the miscarriage. In Hélène’s case, the later date is 17 weeks after the leave began. She will get a total of 17 weeks of pregnancy leave.

Notice Requirements

An employee must give her employer at least two weeks’ written notice before beginning her pregnancy leave.If the employer requests it, she must provide a certificate from a medical practitioner stating the baby’s due date.

Retroactive Notice

Sometimes an employee has to stop working earlier than expected, for example because ofcomplications caused by the pregnancy. In cases such as these, the employee has 2 weeks after she stops working to give the employer written notice of the day the pregnancy leave began or will begin.An employee does not have to start her pregnancy leave at the time she stops working if she has stopped work due to illness or a complication caused by the pregnancy. She may choose instead to treat the time off as sick time and plan to commence the pregnancy leave later (but no later than the earlier of the birth date or due date). If requested, an employee has to provide a medical certificate issued by a doctor, midwife or nurse stating the baby’s due date and stating that she was unable to perform the duties of her position because of the complication.If an employee stops working earlier than expected because of a birth, stillbirth or miscarriage, she has two weeks after she stops working to give the employer written notice of the day the leave began. The pregnancy leave begins no later than the date of the birth, stillbirth or miscarriage. If the employer requests it, the employee has to provide a medical certificate issued by a medical doctor, a midwife or a nurse practitioner stating the due date and the date of birth, stillbirth or miscarriage

Changing Start Date of Leave

If an employee begins their pregnancy leave earlier than the original date, then they must provide the employer with two weeks’ written notice before the new, earlier date.If an employee begins their pregnancy leave later than the original date, then they must provide the employer with two weeks’ written notice before the original date.

Example: Changing the start of a pregnancy leave to an earlier date

Barbara gave her employer written notice that she would begin her pregnancy leave on September 10. Now Barbara wants to start her leave on August 27. She must give her employer new written notice by August 13 (two weeks before August 27).

An employee can also change the date she will begin her leave to a later date than she originally told her employer. To do this, she must give her employer new written notice at least two weeks before the original date she said she would begin her leave.

Example: Changing the start of a pregnancy leave to a later date

Mairead gave her employer written notice that she would start her pregnancy leave on September 10. Now Mairead wants to start her leave on September 15. She must give her employer new written notice by August 27 (two weeks before September 10).

Ending Pregnancy Leave

An employee is not required to provide a return date, but may choose to do so. The employer may not require an employee on pregnancy leave to return from the leave early. If no date of return is provided, the employer is to assume that she will take her full 17 weeks of leave.

Changing End Date of Leave

If an employee is returning earlier than the original date, they must provide the employer with four weeks’ written notice before the new, earlier date.If an employee is returning later than the original date, they must provide the employer with four weeks’ written notice before the original date.

Resignation on Pregnancy Leave

When an employee decides not to return to work while on pregnancy leave, they must give the employer four weeks’ notice of resignation.

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Parental Leave

Any full-time, part-time, permanent or term contract employee who has recently become aparent, and is covered by the ESA, and who started employment at least 13 weeks prior is entitled toparental leave.

Who is a Parent?

A parent is either a birth parent, adoptive parent, or person in a relationship of some permanencewith a parent of the child who intends to treat the child as their own.

Start Date – Parental Leave

Parental leave starts at the end of pregnancy leave, if taken. If no pregnancy leave is taken, aparent must begin parental leave no later than 78 weeks after:

The date his or her baby is born; orThe date his or her child first came into his or her care, custody and control.

Length of Parental Leave

Birth mothers who take pregnancy leave are entitled to receive 61 unpaid weeks’ leave. For any other parent who did not take pregnancy leave, are entitled to 63 unpaid weeks’ leave.Parental leave must be taken all at once, but may decide to take a shorter leave if they wish.NOTE: For miscarriages and stillbirths, spouses are not entitled to take parental leave.

Notice Requirements

An employee taking parental leave must provide his or her employer two weeks’ written notice.

Retroactive Notice

If an employee has to go on parental leave before the scheduled start date, the employee must give his or her employer notice of the start date of his or her parental leave.

Must be provided to the employer within two weeks of the employee’s departure

Changing Start Date of Leave

If an employee changes the date of a parental leave to begin earlier than an original date, they must provide the employer with two weeks’ written notice before the new, earlier date.If an employee changes the date of parental leave to begin later than the original date, they must provide the employer with two weeks’ written notice before the original date.NOTE: If an employee wishes to take a shorter parental leave than 61 or 63 weeks, then the employee must either notify the employer what the return date will be before they start the leave, OR, the employee must give four weeks’ written notice to the employer before the planned return date. Otherwise, the employer will assume the employee is taking the maximum period of leave, and is not under any obligation to immediatelyreinstate the employee.

Ending Parental Leave

The employee is not required to give an end date to his or her parental leave. The employer may not require an employee to return from her or his leave early. However, the employee may choose to give notice of return.

Changing End Date of Leave

If an employee changes the date of return earlier than the original date, they must provide the employer with four weeks’ written notice before the new, earlier date.If an employee changes the date of return later than the original date, they must provide the employer with four weeks’ written notice before the original date.

Resigning on Parental Leave

When an employee decides not to return, they must provide the employer with four weeks’ notice of resignation. This does not apply in the case of constructive dismissal.

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Family Caregiver Leave

Any employee, regardless of length of service is eligible for this leave. The purpose of which is to provide care or support to a family member for whom a health practitioner has issued a certificate stating that the family member has a serious medical condition.

Specified Family Members

Spouse (including same-sex spouse);Parent, step-parent or foster parent of the employee or his/her spouse;Child, step-child or foster child of the employee or his/her spouse;Grandparent or step-grandparent of the employee or his/her spouse;A grandchild or step-grand child or the employee or his/her spouse;A spouse or a child of the employee;A brother or sister of the employee; orA relative of the employee who is dependent on them for care or assistance.

NOTE: The employer may request that the employee provide 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 in which it is stated that the employee is considered to be a family member.

Length of Leave

Up to 8 weeks’ in a calendar year may be taken. They can be taken consecutively or separately. However, a period of less than one week will be considered as a full week.The employer cannot require the employee to take an entire week of leave if the employee only wants to take the leave for a single day, and cannot prevent the employee from working prior or after returning from taking a single day of leave during a work week.

Notice Requirements

The employee must give his or her employer written notice of his or her intention to take this leave as soon as possible, but does not have to be provided before starting the leave.Notice is required before every leave if they are non-consecutive.

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Family Responsibility Leave

An employee, who has been employer for at least two consecutive weeks, is entitled to a leave of absence without pay because of the illness, injury or medical emergency, or “urgent matter” concerning a specified family member.

Specified Family Members

Spouse (including same-sex spouse);Parent, step-parent or foster parent of the employee or his/her spouse;Child, step-child or foster child of the employee or his/her spouse;Grandparent or step-grandparent, grandchild or step-grandchild of the employee or his/her spouse;A spouse of a child of the employee;A brother or sister of the employee; orA relative of the employee who is dependent on them for care or

Length of Leave

An employee is entitled to a total of three calendar days in a year under this leave. If an employee takes part of the day under this leave, the employer may deem the employee to have taken one full day of leave on that day.

Notice Requirements

An employee who takes this leave shall advise his or her employer that he or she will be doing so. If the employee must begin leave before advising the employer, the employee shall advise the employer of the leave as soon as possible after beginning it.

Acceptable Evidence

An employer may require an employee who takes family responsibility leave to provide evidence reasonable in the circumstances that the employee is entitled to sick leave.

Family Responsibility Leave Taken Under Employment Contract

If an employee takes paid or unpaid leave of absence under an employment contract in circumstances which he or she would have also been entitled to take family responsibility leave, the employee is deemed to have taken family responsibility leave. This can also be the case where the employee only uses part of the day as an absence under their contract of employment. It can also be counted as a full sick leave day.

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Family Medical Leave

Is unpaid, job-protected leave of up to 28 weeks in a 52-week period.Family medical leave may be taken to provide care or support to certain family membersand people who consider the employee to be like a family member in the case where a health practitioner has issued a certificate indicating that they have a serious medical condition with a significant risk of death occurring within a period of 26 weeks.NOTE: Any employee is eligible, regardless of length of service.

Specified Family Members

The employee’s spouse (including 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 brother, step-brother, sister, or step-sister of the employee;A grandparent or step-grandparent of the employee or of the employee’s spouse;A grandchild or step-grandchild of the employee or of 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 of the employee’s spouse;An uncle or aunt of the employee or of the employee’s spouse;A nephew or niece of the employee or of the employee’s spouse; orThe spouse of the employee’s grandchild, uncle, aunt, nephew or niece.

NOTE: Family medical leave may also be taken for a person who consider the employee to be like a family member. People in this situation must provide their employer, if requested, with a completed copy of the compassionate care benefits attestation form, available from Employment and Social DevelopmentCanada, whether or not they are making an application for EI Compassionate Care Benefits or are required to complete the form to obtain such benefits.

Length of Leave

Up to 28 weeks within a 52 week period, the 52 week period starts on the first day of the week in which the 26-week period specified in the medical certificate begins.Leave does not have to be taken consecutively, however, if an employee only takes part of a week off, it is counted as a full week of leave.

Leave Taken in Partial Weeks

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

The employee’s right to leave only begins on the first day he or she is providing care or support;The employee is entitled to leave for the rest of that week; andThe employee may return to work only if the employer agrees.

Example: Felicia works weekdays. She provides care or support to her dying mother on Wednesday and takes family medical leave to do it. The first day of the week that she is entitled to be on family medical leave is Wednesday. She is also entitled to be on family medical leave on Thursday and Friday even though she is not providing care or support on those days. She is able to return to work on Thursday and Friday only if she wants to and her employer agrees to let her. Felicia is considered to have used up one of her 28 weeks of family medical leave even though she was on leave for only part of the week.

Sharing Family Medical Leave

The 28 weeks must be shared by any employee of the same employer who each take a leave to care for the same family member.

Example:

If one spouse takes 18 weeks, the other spouse is only entitled to 10 weeks, the employees could take leave at the same time, or at different times.

Extending Family Medical Leave

If the family member lives longer than the projected 26 week period, the employee can remain on leave for up to 28 weeks without a new certificate.If the family member lives longer than 52 weeks and a new certificate is issued, the employee is entitled to another 28 weeks of family medical leave.

Example:

On Sunday, January 1, a qualified health practitioner issues a certificate stating that Jean’s mother has a serious medical condition with a significant risk of death within a period of 26 weeks. Jean takes 26 weeks of leave (ending July 1). Jean’s mother is still alive on July 1: Jean can take a further two weeks of leave before December 31 and will not have to get a second medical certificate to be entitled to take the full 28 weeks of leave.If an employee has taken a family medical leave to care for a family member who has not passed away within the 52-week period starting on the first day of the week in the 26-week period specified in the medical certificate, and a health practitioner issues another certificate stating that the family member has a serious medical condition with a significant risk of death within 26 weeks, the employee would be entitled to an additional 28-weeks of family medical leave.

Additional Family Members

If an employee has more than one family member eligible for family medical leave, the employee is entitled to take up to 28 weeks of family medical leave for each family member.

Start Date – Family Medical Leave

Earliest start date is the first day of the week in which the 26-week period begins.NOTE: “Week” is defined for the purposes of family medical leave as a period of seven consecutive days, beginning on a Sunday and ending on a Saturday. If the date indicated on the surgery is a day other than Sunday, the 26 week period will begin on the preceding Sunday.

Example:

On Wednesday, June 13, a qualified health practitioner issues a certificate stating that Mohammed’s spouse has a serious medical condition with a significant risk of death within a period of 26 weeks. Because a week is defined as a period of 7 consecutive days beginning on Sunday and ending on Saturday under the family medical leave provisions, the 26-week period is considered to begin Sunday June 10. Assuming Mohammed wished to commence the leave on the day the certificate was issued, the first week of the leave would be considered to have begun on Sunday June 10.

End Date – Family Medical Leave

The latest day an employee can remain on leave is:

The last day of the week in which the family member dies;The last day of the week in which the 52 week period expires; orThe last day of the 28 weeks of family medical leave.

Whichever of the above is earliest will prevail.Based on the definition of “week” for family medical leave, the last day an employee can be on leave will always be a Saturday.

Medical Certificate

The medical certificate supporting this leave:

Must be issued by a qualified health practitioner (doctor or nurse practitioner);Does not have to be produced before leave starts;Employer is entitled to ask for a copy;Does not need to specify condition; andEmployee is responsible for costs, if any.

Notice Requirements

The employee must give his or her employer written notice of his or her intention to take this leave as soon as possible.NOTE: If the leave is not taken consecutively, the employee must provide notice before beginning each part of the leave

Example:

Boris is going to take 14 weeks of leave from January 30 to May 6, and another 14 weeks from August 28 to December 2. Boris is required to provide written notice to his employer of both periods of leave. He can do this by providing a single written notice that sets out the start dates of both periods of leave, or he can provide two separate notices, at the same or different times.An employee who does not give notice does not lose their right to a family medical leave.While an employee is required to tell the employer in advance that they are taking a leave (or, if this is not possible, as soon as possible after starting the leave), the employee will not lose the right to take family medical leave if the employee fails to do so. An employer may discipline an employee who does not properly inform the employer, but only if the reason for the discipline is the failure to properly notify the employer and not in any way because the employee took the leave.

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Critical Illness Leave

Is unpaid, job-protected leave for up to 37 weeks for a minor, or 17 weeks for an adult. The purpose of this leave is to provide care and support to an individual who is a specified family member.Critical Illness leave is provided to any employee employed for at least 6 consecutive months.A qualified health practitioner must issue a certificate stating:

The family member is critically ill;The family member requires care or support of family; andThe period they require this care or support.

Definitions for Critical Illness Leave

Minor: child, step-child, foster-child, or child under legal guardianship and under 18 years of age.Adult: 18 years of age or older.Critically Ill: the person’s baseline state of health has significantly changed and their life is at risk as a result of an illness or injury. (Not including chronic conditions if the chronic condition is the person’s normal state of health.)

Specified Family Members

Medical Certificate

The employee does not have to have the medical certificate before they can start the leave, but must be obtained eventually.An employer is entitled to ask for a copy of the certificate, and the employee must comply as soon as possible.The medical certificate must:

Name the minor child or adult;State that the minor child or adult is critically ill or has been critically injured;State that the minor child or adult requires the care or support of at least one family member; andSet out the period during which the minor child or adult requires the care or support.

Length of Leave

A critical illness leave taken to care for:

Minor: up to 37 weeks in 52 week periodAdults: up to 17 weeks in a 52 week period

The medical certificate issued will set out a period during which the person requires care or support, and the employee is only entitled to take a leave for the period set out in the certificate.Weeks of leave do not need to be taken consecutively, they can also be taken separately and shared between employees if they are both family members of the person in need of care.A “week” is defined as running from Sunday to Saturday.

Extending Critical Illness Leave

If the certificate specifies a leave of less than 37 or 17 weeks, the leave may be extended to a maximum of 37 or 17 weeks if another certificate is issued. A total leave cannot exceed the 17 or 37 set weeks in a 52 week period.

Example:

Mark’s minor child Jason became critically ill on January 1. The certificate issued on January 1 stated that Jason requires the care or support of a family member for four weeks (until January 28). Jason is still critically ill on January 28. Another certificate is issued on January 29, stating that Jason will require care or support of a family member for another three weeks (until February 18). Mark is entitled to four weeks of leave during the period January 1 to January 28 and to a “further” leave of three weeks during the period January 29 to February 1, for a total of seven weeks of leave.

NOTE: The original leave and the extension(s) cannot be longer than 37 weeks in a 52-week period.Example:

Gail’s minor child Maggie became critically ill on January 1. The certificate issued on January 1 stated that Maggie requires the care or support of a family member for 30 weeks (until July 29). Maggie was still critically ill on July 29. Another certificate was issued on July 30 stating that Maggie will require care or support for another ten weeks (until October 6). Although Gail was entitled to take leave during the 30-week period from January 1 to July 29, and to take a “further” leave during the 10-week period from July 10 to October 6, the total amount of leave she is entitled to is 37 weeks during the 52-week period that began on January 1.

Example:

Deljeet’s adult brother Balbir became critically ill on January 1. The certificate issued on January 1 stated that Balbir requires the care or support of a family member for 10 weeks (until March 11). Balbir is still critically ill on March 11. Another certificate was issued on March 12 stating that Balbir will require care or support for another 10 weeks (until May 20). Deljeet can take a further leave during the 10-week period between March 12 and May 20, but she can take no more than seven further weeks and her leave will end on April 29. The total amount of leave Deljeet is entitled to is 17 weeks within the 52-week period running from January 1, the date of the first certificate. She may be eligible for an additional leave after that period is over: see “additional leaves”, below.

Additional leaves: If a minor child or adult remains critically ill after the 52-week period has expired, the employee is entitled to take another leave if the requirements for eligibility are met.

Example: A qualified health practitioner issued a certificate on January 1 2017, stating that Frank’s minor child Rooney is critically ill and requires the care or support of a family member for 52 weeks. Frank is entitled to up to 37 weeks of critical illness leave during that 52-week period. Rooney remains critically ill on December 31. Another certificate is issued on January 1 2018, stating that Rooney remains critically ill and requires the care or support of a family member for another 40 weeks. Frank is entitled to a new, “additional” leave of 37 weeks in the 52-week period starting January 1, 2018.

Notice Requirements

The employee must give his or her employer written notice of his or her intention to take this leave as soon as possible. Notice does not need to be provided before beginning the leave.

Change in Planned Leave

The employee may take this leave at a time other than indicated in the original plan where:

The employer grants permission in writing; orThe employee gives the employer reasonable advance of the change in writing.

There is no limit on the number of times the employee may change a planned leave.

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Organ Donor Leave

Is an unpaid, job-protected leave for up to 13 weeks. The purpose is to take time off to donate an organ.The employee must be:

Employed for at least 13 weeks; andScheduled to undergo surgery to donate all or part of one or more of the following organs:KidneyLiverLungPancreasSmall bowel

Start Date – Organ Donor Leave

This leave may begin on the date of the surgery to remove the donor organ. It may also begin earlier where specified in a certificate issued by a qualified medical practitioner.

Length of Organ Donor Leave

An employee may take up to 13 weeks. It may be extended once if it’s stated as necessary in the medical certificate. The certificate must also specify a period of time and the extension cannot exceed 13 weeks.NOTE: The maximum is 26 weeks total, with an extension.Example: Gabriel began an organ donor leave on September 1, the day that he had surgery to donate part of his liver to his daughter. Upon the employer’s request, he provided a medical certificate from his doctor in advance of the surgery. After 13 weeks of organ donor leave, Gabriel was planning to return to work, but he had complications from the surgery that has hampered his recovery. His doctor recommended extending Gabriel’s organ donor leave for another six weeks. Gabriel provided his employer with a medical certificate from his doctor stating this and extended his leave for an additional period of six weeks.

Notice Requirements

The employee must give his or her employer written notice of his or her intention to take this leave. Where possible, the employee should give their employer two weeks’ written notice before beginning or extending the leave. If that is not possible, written notice must be provided as soon as possible after beginning or extending the leave.

Medical Certificate

The employer may request a copy of the medical certificate, which must:

Confirm the employee has undergone or will undergo surgery; andIdentify when the employee is to begin the leave, if requested before the surgery, and/or to extend a leave for a period of time

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Reservist Leave

Is an unpaid, job-protected leave of absence. The purpose is to serve while deployed in a Canadian Forces operation.The employee must be a reservist in the Canadian Forces, who is either:

Deployed to international or domestic operation; orProviding assistance in an emergency or its aftermath.

In order to be eligible for this leave, the employee must have been employed for 6 months.Generally, reservists must provide their employer with a reasonable written notice of the day on which they will begin and end the leave.Employees on a reservist leave are entitled to be reinstated to the same position if it still exists or to a comparable position if it does not. Seniority and length of service credits continue to accumulate during the leave.Unlike the case with other types of leave, an employer is entitled to postpone the employee’s reinstatement for two weeks after the day on which the leave ends or one pay period, whichever is later. Also, the employer is not required to continue any benefit plans during the employee’s leave. However, if the employer postpones the employee’s reinstatement, the employer is required to pay the employer’s share of premiums for certain benefit plans related to their employment and allow the employee to participate in such plans for the period the return date is postponed

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Child Death Leave

The employee must have been employed for 6 consecutive months, and be the parent of a child that has died.Exceptions:Employee is charged with a crime related to the death; and/orThe child was party to a crime in relation to death.

Length of Leave

A leave for the death of a child must be taken within the 105-week period that begins the week the child has died. The leave must be taken in a single period.The total amount of child death leave that can be taken is 104 weeks. Leave can be shared between employees affected, and can be taken at the same time or different times, whether or not the employees work for the same employer.

Notice Requirements

The employee must give his or her employer written notice of his or her intention to take this leave. This notice must:

Include a written plan, andBe provided to the employer as soon as possible.

NOTE: An employee who does not give notice does not lose their right to the leave.

Change in Planned Leave

If the employee changes the period of leave set out in his or her written plan:

The employer must grant permission in writing, orThe employee must provide four weeks’ written notice of the change to the plan.

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Crime Related Child Disappearance Leave

To be eligible for this leave, the employee must:

Have been employed for 6 consecutive months;Be the parent of a child that has disappeared; andIt is probable that the employee’s child disappeared as a result of a crime.

Exceptions:

Employee is charged with the crime; and/orChild was a party to the crime.

“Child” means a child, step-child, or foster-child who is under 18 years of age.An employer may require the employee to provide reasonable evidence of the employee’s entitlement to the leave.

Timing and Length of Leave

A leave must be taken within the 105-week period that begins the week the child disappeared. It also must be taken in a single period.Leave can be shared, and two employees can be on leave at the same time or at different times. This applies whether or not the employees work for the same employer.

Notice Requirements

The employee must give his or her employer written notice of his or her intention to take this leave. This notice must:

Include a written plan; andBe provided to the employer as soon as possible.

NOTE: An employee who does not give notice does not lose their right to the leave.

Change in Planned Leave

If the employee changes the period of leave set out in his or her written plan, the employer must grant permission in writing, or, the employee must provide four weeks’ written notice of the change to the plan.

Change in Circumstances

If there is a change in circumstance, there may be a change in the employee’s entitlement to leave.If the crime is no longer probable:

Leave ends on day it is no longer probable.

If the child is found alive:

14 days of leave remains after the day the child is found.

If the child is found dead:

The employee can remain on leave until the end of the week; andEmployee becomes entitled to Child Death Leave

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Bereavement Leave

An employee employed by the employer for at least two consecutive weeks is entitled to an unpaid leave of absence following the death of specified family member.

Specified Family Members

Length of Leave

An employee is entitled to leave under this section to a limit of two days in a calendar year

Notice Requirements

An employee who wishes to take this leave must advise his or her employer that he or she will be doing so. If an employee must begin the leave without advising the employer, the employee shall advise the employer as soon as possible.

Acceptable Evidence

An employer may require the employee to provide evidence that is reasonable in the circumstances that the employee is entitled to bereavement leave.

Bereavement Leave Taken Under Employment Contract

If an employee takes an absence under an employment contract for which he or she would also be entitled to bereavement leave, the employee is deemed to have taken the leave under this section.

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Domestic or Sexual Violence Leave

To be eligible for this leave, the employee must have been employed for 13 consecutive weeks and the employee or their child must have experienced or been threatened with domestic or sexual violence.“Child” means a child, step-child, child under legal guardianship or foster-child who is under 18 years of age.NOTE: The ESA does not include a definition of what domestic or sexual violence is for purposes of the ESA.

Purposes of Leave

An employee may take this leave for a variety of reasons:

To seek medical attention for physical or psychological injury or disability;To access services from a victim services organization;To have psychological or other professional counselling;To move temporarily or permanently; and/orTo seek legal or law enforcement assistance.

Length of Leave

An employee is entitled to up to 10 days of domestic or sexual violence leave every calendar year, whether they are employed on a full-time or part-time basis.There is no pro-rating of the 10-day leave. An employee who begins work partway through a calendar year is still entitled to 10 days.Employees cannot carry over unused domestic or sexual violence leave.The 10 days of leave do not have to be taken consecutively. They can take leave in part days, full days, or in periods of more than one day. If an employee takes only part of a day, the employer can count it as a full day of leave.Employees are also entitled to 15 weeks of domestic or sexual violence leave within a calendar year. They can be taken consecutively or separately.The employee may take leave for periods less than a full week, but if they do, they are considered to have used up one week of their 15-week entitlement. If the employee is on leave for two or more periods within the same week (for example, on leave on Monday and Thursday of the same week), only one week of the 15-week entitlement is used up.The employer cannot require the employee to take an entire week of leave if the employee only wants to take leave for a single day, and cannot prevent the employee from working prior to taking a single day of leave during a week, nor can they prevent the employee from returning to work after a single day of leave during the week.NOTE: The first five days of domestic or sexual violence leave taken in a calendar year must be paid.The rest are unpaid. The first five days are to be paid whether the employee takes leave from the 15-week entitlement, or the 10-day entitlement.If an employee takes part of a day (for example, to attend a counselling session) it will count as an entire day, and if an employee takes part of a week (for example, to move into a shelter) this will count as entire week of leave under this section.

Calculating Pay

If an employee is a performance related wage earner and takes the first five days or this leave, the employee is paid the greater of:

Their normal hourly rate; orMinimum wage.

The employee is not entitled to overtime, shift premium, or public holiday premium rates.Employees who are paid by hourly rateDomestic or sexual violence pay is calculated by the hourly rate multiplied by the number of hours the employee did not work because they took the leave.

Example:

Naila is paid $16.00/hour and missed a full day of work to take domestic or sexual violence leave. She was scheduled to work nine hours. Domestic or sexual violence leave pay:

$16.00 x. 9 = $144.00

Employees who are paid a salaryFor an employee paid by salary, paying personal emergency leave pay is generally equal to salary continuance.If the employee took leave for a full day: salary ÷ number of days in pay period

Example:

Theresa is paid $1500.00 per bi-weekly pay period and works a five day week. Domestic or sexual violence leave pay for one day =

$1500.00 ÷ 10 = $150.00.

If the employee took leave for part of the day: hourly rate (salary ÷ number of hours the employee normally works in a pay period) x number of hours taken as domestic or sexual violence leave.

Performance related wagesDomestic or sexual violence leave pay for an employee paid fully or partly based on their performance is the greater of the employee’s “hourly rate, if any” and minimum wage for the time the employee took for paid domestic or sexual violence leave. “Performance-related wages” can include commission, commission plus an hourly wage, piece work, or a flat-rate.

Example 1: Employee earns an hourly rate + commission

Raquel earns $16.00/hour plus two per cent commission on sales, Raquel takes 6.5 hours of domestic or sexual violence leave. Domestic or sexual violence leave pay:

$16.00 x 6.5 = $104.00 (plus hourly wage for any hours worked + commission earned while the employee worked, if any)Example 2: Employee paid entirely by commission

Francesca earns 10 per cent commission on all sales, plus expenses and a car allowance. Francesca is scheduled to work eight hours, makes sales of $5000 and takes three hours of domestic or sexual violence leave. Domestic or sexual violence leave pay: applicable minimum wage rate x 3 (in addition to $500.00 commission earned while the employee worked, if any)

Example 3: Employee is a homeworker paid by piece work

Paula earns $3.50 per phone call answered. Paula is scheduled to work 8.5 hours, works two hours, answers nine phone calls, and takes 6.5 hours of domestic or sexual violence leave. Domestic or sexual violence leave pay: applicable minimum wage x 6.5 (in addition to regular wages earned on the day – $3.50 x 9)

Employees who are scheduled to work overtime hoursIf an employee is scheduled to work a shift which will include overtime hours, and they miss all or part of the shift to take paid domestic or sexual violence leave, the employee will be entitled to the regular hourly rate only, not the overtime rate.

Example:

Pat is paid $15.00/hour and was scheduled to work a Saturday shift of eight hours. She had already worked 44 hours in the same week. She missed her entire shift to take paid domestic or sexual violence leave.Domestic or sexual violence leave pay:

$15.00 x 8 = $120.00

Employees who are scheduled to work hours when a shift premium is paidIf an employee is scheduled to work a shift which will normally be paid at a higher rate due to a shift premium, and the employee misses all or part of the shift to take paid domestic or sexual violence leave, the employee will be entitled to the regular hourly rate only, not the regular hourly rate plus the shift premium.

Example:

Minh is paid $16.00/hour and is paid an additional $2.50/hour for working weekend shifts. She is scheduled to work a Saturday shift of nine hours and leaves after working two hours to take paid domestic or sexual violence leave.Domestic or sexual violence leave pay:

$16.00 x 7 = $112.00 (plus regular wages of $16.00+$2.50 x 2 for the hours that she worked).

If an employee qualifies to take domestic or sexual violence leave, this will also generally constitute “reasonable cause” for the purposes of public holiday entitlements. See the public holiday chapter for more information.If an employee agrees to work (or is required to work) on a public holiday and misses some or all of the shift to take paid domestic or sexual violence leave, domestic or sexual violence leave pay will not include “premium pay” if the employee would have earned it had they worked instead of taking the leave.

Example:

Celina works in a restaurant and is required to work on Victoria Day. She is paid the liquor server’s minimum wage. She is scheduled to work 10 hours on the public holiday, and the employer has decided to give her premium pay for all hours worked on that day, plus public holiday pay (but no substitute day off in the future).Celina works 6 hours of the shift and takes the rest off as paid domestic or sexual violence leave.

Entitlements

Public holiday pay + premium pay for hours worked (liquor server’s minimum wage x 1.5 x 6 hours)Domestic or sexual violence leave pay:

$0 because she is already receiving a full day’s pay (6 hours at 1.5 = 9 hours).

Notice Requirements

10-day PeriodsThe employee must give his or her employer notice of his or her intention to take this leave in advance of going on leave or as soon as possible after beginning it.15-week PeriodThe employee must give his or her employer written notice of his or her intention to take this leave in advance of going on leave or as soon as possible after beginning it.NOTE: If leave is taken in non-consecutive days or weeks, employee must give the employer written notice each time.

Evidence

An employer may require an employee to provide evidence reasonable in the circumstance.“Reasonable in the circumstances” depends on the situation, such as:

The length of leave taken;Whether there is a pattern of absences;Whether any evidence is available; and/orThe cost of any evidence.

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Declared Emergencies Leave

An employee is entitled to a leave of absence without pay under this section where the employee will not be performing the duties of his or her position because of an officially-declared emergencyunder the Emergency Management & Civil Protection Act. For more details regarding this leave, please refer to the ESA and its regulations.

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Reprisals

An employer CANNOT penalize or threaten to penalize an employee in any way for:

Asking the employer to comply with the ESA and the regulations;
Asking questions about rights under the ESA;
Filing a complaint under the ESA;
Exercising or trying to exercise a right under the ESA; and/or Giving information to an employment standards officer.

An employer cannot penalize or threaten to penalize any employee in any way for:

Asking about the rate of pay paid to another employee to determine if an employer is providing equal pay for equal work
Disclosing their rate of pay to another employee to determine if an employer is providing equal pay for equal work

An employer cannot penalize or threaten to penalize an employee in any way for:

Taking, planning on taking, being eligible or becoming eligible for any leave in the ESA
Being subject to a garnishment order

An employer cannot penalize or threaten to penalize an employee in any way for:

Participating in a proceeding under the ESA, and/or Participating in a proceeding under section 4 of the Retail Business Holidays Act

If any employer penalizes an employee for those reasons, an Employment Standards Officer may order:

Reinstatement of the employee
Compensation of the employee for losses

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Download the Full PDF

This guide should not be used as or considered legal advice. You may have greater rights under an employment contract, collective agreement, or other legislation. This Tool Kit is a source of information about key sections of the ESA that affect our members the most. It is meant to assist you, but is not as detailed as the ESA legislation. If you have questions or concerns regarding the rights and/or obligations of your employees or employers, please consult with a labour lawyer.

Questions?

Contact David Black, Director, Government Relations & Public Relations at dblack@cfa.ca or call 1-800-665-4232 ext. 297.