Yes. Employees can take time off work to care for a sick family member. It can be difficult for many employees to balance workplace obligations and caring for a sick family member. Ontario employees who care for minor children or aging parents can struggle to find an equilibrium between their job and their caregiving responsibilities. This can cause an employee to feel exhausted and overstrained leading to a request for a leave of absence from their job. 

This blog will investigate what is a leave of absence in the employment law context, what is family responsibility leave as well as other longer-term statutorily protected leaves of absence related to caring for sick family members. We then go on to look into what happens when an employee returns to work after a leave of absence and what can happen if an employee is fired from their job for taking a leave of absence related to caring for someone in their family who is ill or sick. 

What is a leave of absence?

A leave of absence is time when the employee is not attending work. However, the employee remains employed during a leave of absence and is not dismissed. Sometimes the employee will be paid during their leave of absence and at other times the employee will not be paid by the employer during a leave of absence. A leave of absence may be taken for many different reasons. It could be related to the employee’s health or caregiving responsibilities, or the employee may take time away from the workplace to participate in travel or additional education or training. Some types of leaves of absence (such as parental leave) may not be discretionary on whether the employer agrees that the employee is able to take a leave of absence. But others (such as travel) would be discretionary on whether the employer agrees to allow the employee to take such a leave of absence. 

There are certain statutorily protected leaves of absence that are set out in Ontario’s Employment Standards Act, 2000 (“ESA”). This means that they are not discretionary on the part of the employer in that short of providing the employer with the requisite notice, the employee does not have to ask permission to take statutorily protected leaves of absence. There are several different types of leaves of absence that are statutorily protected leaves of absence that we set out below that are available for employees who need to take time off work in order to care for a sick family member. If you would like to learn more about statutorily protected leaves of absence as set out in the ESA, please review our blog Need to Take a Leave From Work? Know Your Ontario Rights.

In each instance the employee must be employed in a job that is covered by the ESA to take the following leaves of absence. In most cases, to be eligible the employee does not have to be employed on a full-time basis, and the employee remains entitled to a leave of absence if they are employed in a part-time capacity or on a fixed-term contract basis. However, if the employee is a federal employee, their employment would not be under the ESA but under the Canada Labour Code, 1985, and as such, statutorily protected leaves of absence in the federal employment context should be found in that statute. 

Family Responsibility Leave 

Family responsibility leave is a leave of absence that is protected under the ESA. The ESA allows an employee to take up to three days of unpaid job-protected family responsibility leave to assist a family member of the employee when the family member has an urgent illness, injury or medical emergency. 

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

• the employee must provide care related to an illness, injury, medical emergency or urgent matter; 
• the employee is entitled to take family responsibility leave for pre-planned or elective surgery; 
• family responsibility leave can also be taken for an “urgent matter” which may not be related to an illness but must still be beyond the employee’s control and can cause serious negative consequences (such as a hired caregiver of a minor child calls in sick or suddenly cannot provide caregiving services); 
• there is no prorating of the 3-day entitlement; 
• employees cannot “carry over” unused family responsibility leave to the next calendar year; 
• an employee must inform the employer before starting family responsibility leave or as soon as possible after starting family responsibility leave; and,
• an employer may require an employee to provide evidence that is reasonable under the circumstances that they are eligible for family responsibility leave (what is reasonable will depend on the circumstances).

Longer-Term Statutorily Protected Leave of Absence Related to Caring for Sick Family Member 

There are several longer-term statutorily protected leaves of absence under the ESA that employees caring for a sick or ill family member can take. We discuss those below. 

Family Caregiving Leave

Family caregiving leave is a leave of absence that is protected under the ESA. The ESA allows an employee to take up to eight weeks of unpaid 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.

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 of the employee does not need to live in Ontario, and the employee can travel outside Ontario when they are taking family caregiving leave to care for 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.

For more information specifically about family caregiving leave, please review our blog entitled Family Caregiving Leave in Ontario. 

Family Medical Leave 

Family medical leave is a leave of absence that is protected under the ESA. The ESA allows an employee to take up to 28 weeks in a 52-week period of unpaid job-protected family medical leave to assist a family member of the employee when the family member has a serious medical condition with a significant risk of death occurring within a period of 26 weeks. 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 with a significant risk of death.

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

• all employees (whether part-time or full-time) are eligible for family medical leave, nor do they have to be employed for any length of time; 
• care or support includes but is not limited to providing psychological or emotional support, arranging care by a third-party provider or directly participating in the care of the family member; 
• 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;
• if the employee only takes part of the week off as family medical leave, the week is still counted as one week of family medical leave; 
• if an employee has more than one specified family member who has a serious illness with significant risk of death within a period of 26 weeks, the employee will still be able to take a 28-week family medical leave for each of the specified family member;
• if a qualified health practitioner issues a certificate stating that a specified family member has a serious medical condition and there is a significant risk of death occurring within the period of 26 weeks, an employee must take the family medical leave with the 52-week period starting on the first day of the week the 26-week period begins; 
• the earliest an employee may start the leave is the first day of the week in which the 26-week period identified on the medical certificate begins; 
• an employee does not have to have the medical certificate before they start family medical leave, but a certificate must eventually be obtained; 
• an employer is entitled to ask for a copy of the medical certificate; 
• a qualified medical practitioner is a person who is qualified to practice medicine under the jurisdiction in which the care or treatment of the family member is taking place (in Ontario only a doctor or nurse practitioner can issue a medical certificate for family medical leave); and
• an employee must inform the employer in writing that they are taking family medical leave or as soon as possible after they begin family medical leave.

Critical Illness Leave 

Critical illness leave is a leave of absence that is protected under the ESA. The ESA allows an employee to take up to 37 weeks in a 52-week period of unpaid job-protected critical illness leave in order to assist a critically ill minor child or 17 weeks in relation to a critically ill adult family member. Critically ill means that an individual baseline state of health has significantly changed and their life is at risk due to an illness or injury. Illness or injury cannot relate to a chronic illness or injury. 

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

• the critically ill family member does not have to live in Ontario in order for the employee to take critical illness leave; 
• an employee can take critical illness leave to care for a minor child who is their own child or a minor child who is a family member (the definition of family member is quite broad); 
• an employee should be employed for at least 6 consecutive months to be eligible for critical illness leave and the employee can be either employed part-time or full-time; 
• if a critically ill minor child or adult dies while an employee is on critical illness leave, the employee’s entitlement ends on the week the person dies; 
• the total amount of critical illness leave that may be taken by one or more employees with respect to the same minor child is 37 weeks and 17 weeks for an adult; 
• an employee does not have to have a medical certificate before they start critical illness leave, but a medical certificate must be eventually obtained; 
• a qualified medical practitioner is a person who is a physician, registered nurse or psychologist under the laws of the jurisdiction o which care or treatment is being provided; 
• the employee does not have to have a medical certificate before they can start the leave, but a certificate must eventually be obtained; and
• an employer can ask for a copy of the medical certificate.

What happens when an employee returns to work after a leave of absence? 

The employee should return to the same job they had before they went on their leave of absence as set out under the ESA. 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 a leave of absence, they may be able to claim constructive dismissal. Once a 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 moral damages as well.

What if an employee is fired for taking a leave of absence? 

Generally, an employer can fire or terminate an employee while that employee is on a leave of absence as long the 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 a leave of absence, 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 a leave of absence as set out in the ESA in Ontario. To do so is unlawful and may carry with it serious consequences to the employer. Among other things, an employer who terminated an employee may be liable to termination and severance pay, as well as damages under Ontario’s Human Rights Code, 1990, (“Code”) as well as moral and punitive damages. The employee may also seek the right to be reinstated to their job with full backpay.

Further, while it is possible that an employer may move to terminate the employment of an employee for taking more time off from work as a leave of absence than what is set out in the ESA related to a specific leave of absence, it is extremely unlikely that firing an employee for taking a leave greater than the allotted days under the ESA would be valid in Ontario. This because under the Code, employers are mandated to accommodate their employees if they take a leave of absence up to the point of “undue hardship.” This means that an employee may be theoretically allowed to be on “leave” for months or, possibly, even years to care for a sick family member. However, employers may terminate or dismiss an employee for taking leave if the leave of absence majorly disrupts the employer’s business and any accommodations cannot alleviate the situation without extreme difficulty having regard to the employer’s costs, outside sources of funding and / or health and safety requirements, as this would possibly constitute undue hardship.

How can Zeilikman Law help!

Zeilikman Law helps both employers and employees manage employment law issues around job-protected statutory leaves of absence including by providing legal advice, preparing various policies, correspondence or other documentation, helping both parties negotiate a resolution to these issues, litigation management, etc. We strongly encourage anyone who has questions or concerns related to these topics to contact Zeilikman Law and schedule a confidential consultation. 

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

• Bereavement Leave in Ontario
• Pregnancy Leave, Parental Leave and Maternity Leave
• 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.