Did you know that employees are statutorily entitled to take time off work as a leave of absence for certain periods due to specific circumstances? The employer must accept a legal leave of absence by an employee as those specified leaves are protected by Ontario’s Employment Standards Act, 2000 (“ESA”).

This blog will look specifically at the family caregiving leave under the ESA. We define what is family caregiving leave, who is eligible to take this leave, the issue of a medical certificate, what should happen to the employee’s job when they return from family caregiving leave and what can happen if an employer decides to fire an employee while they are on family caregiving leave.

What is Family Caregiving Leave?

A leave of absence is a time when an employee is not at work on a temporary basis. The employee remains employed during this period and is not dismissed. Sometimes the employee will be paid during a leave of absence and at other times the employee will not be paid by the employer during a leave of absence.

Family caregiving leave is a leave of absence that is protected under the ESA. The ESA allows for an employee to take up to eight weeks of job-protected family caregiving leave to assist a family member of the employee when the family member has a serious medical condition. The family member must have a serious medical condition, and the employee must have a certificate from a qualified medical practitioner that sets out that the family member has a serious medical condition.

An employee must inform the employer in writing that they will be taking a family caregiver leave of absence. The employee also does not need to take the full eight weeks of leave at the same time as the eight weeks of family caregiving leave can be taken by the employee consecutively or separately. However, if an employee does not attend work in order to take part of a week off for family caregiving leave, they will be deemed to have taken all of the week as family caregiving leave and that week will be one of the eight weeks of family caregiving leave.

Who is eligible for Family Caregiving Leave?

The employee must be employed. However, to be eligible the employee does not have to be employed on a fulltime basis, and the employee remains entitled to the leave if they are employed in a parttime capacity or on a fixed-term contract basis.

Here are some quick facts related to eligibility for family caregiving leave as set out in the ESA:

• the employee must provide care or support for a family member who has a serious medical condition;
• care and support that the employee’s family member needs can be emotional or psychological support from the employee as well as physical support from the employee;
• care and support can also include arrangements that the employee must undertake for third parties to support the family member related to their serious medical condition;
• the family member does not need to live in Ontario, and the employee can travel outside Ontario when they are taking family caregiving leave to care and support their family member with a serious medical condition;
• the definition of a “family member” is quite broad under the ESA and can include foster parents and foster children, stepparents and stepchildren, grandparents and grandchildren including step grandparents and step grandchildren, along with a spouse, children and siblings of the employee; and
• the definition of a family member can also include any relative of an employee who is dependent on that employee for care or assistance.

Does the Employee Need to Obtain a Medical Certificate?

Yes. The employee must obtain a medical certificate from a qualified health practitioner. Family caregiving leave may be started by the employee without the employee providing the employer with a medical certificate related to the care and support of a family member with a serious medical condition, but the employee must provide a medical certificate to the employer in order to be eligible for family caregiving leave under the ESA. Further, a qualified health practitioner is a person who is qualified to practice as a physician, registered nurse or psychologist under the laws of the jurisdiction in which care or treatment of the employee’s family member is being provided.

The medical certificate must set out the following:

• must name the family member; and
• must state that the family member has a serious medical condition (there is no need to set out exactly what the medical condition is but that it is “serious”).

The medical certificate does not need to include a specific date or time that the family member will have a serious medical condition. If the medical certificate does include a specific date or time, the medical certificate will support workplace absences for family caregiver leave from the date the medical certificate is issued until the end of the calendar year in which the medical certificate is issued.

Finally, the employee is responsible for paying any costs associated with obtaining a medical certificate from a qualified healthcare practitioner and the employee must further provide a copy of the medical certificate to the employer if the employer asks for a copy of the medical certificate.

What Should Happen When the Employee Returns to Their Job After the Family Caregiving Leave Ends?

The employee should return to the same job they had before they went on family caregiving leave. This means that the employee should come back to the same job with the same title, work hours, workplace location, benefits, responsibilities and remuneration.

If the employee comes back to a job that is substantially different to what they had before they went on family caregiving leave, they may be able to claim constructive dismissal. Once the claim for constructive dismissal has been made by the employee against the employer, the employee will then generally claim termination and severance pay. Further, and depending on the circumstances, the employee may also be entitled to punitive and / or general damages as well.

What if the Employer Fires the Employee While They are on Family Caregiving Leave?

Generally, an employer can fire or terminate an employee while that employee is on family caregiving leave as long the family caregiving leave was not a factor in the decision by the employer to terminate the employee. However, even if the reason for the dismissal is not due to the employee taking family caregiving leave, the employer still owes the dismissed employee notice of termination or pay in lieu of that notice. If the employer fails to do so, the employee may have a claim against the employer for wrongful dismissal.

An employer is not allowed to terminate the employee because that employee went on family caregiving leave in Ontario. To do so is unlawful and may carry with it serious consequences to the employer. Among other things, an employer who terminates an employee may be liable to termination and severance pay, as well as damages under Ontario’s Human Rights Code, 1990, as well as moral and punitive damages. The employee may also seek the right to be reinstated to their job with full backpay.

How Can Zeilikman Law Help?

Zeilikman Law helps both employers and employees manage employment law issues around job-protected statutory leaves of absence including family caregiving leave by providing legal advice, preparing various policies, correspondence or other documentation, helping both parties to negotiate a resolution to these issues, litigation management, etc.

For more information about other statutorily protected leaves of absence, please review:

• Pregnancy Leave, Parental Leave and Maternity Leave
• Need to Take a Leave From Work? Know Your Ontario Rights
• Terminated While on Sick Leave?

Contact Zeilikman Law today at (905) 417-2227 or online here to get your questions answered about this topic and other employment law issues.