Sometimes employees need to take a leave of absence from their work. This can happen for a lot of different reasons for things like poor mental health, an illness in the family or simply unexpected life events. Employees may be eligible for a leave of absence from work regardless of whether they are employed full-time, part-time, permanent, or term contract employees.
As an employer, it is important to understand that certain leaves of absence must be properly abided by on the part of the employer if those leaves are a protected statutory entitlement under Ontario’s Employment Standards Act, 2000 (“ESA”).
What exactly is a leave of absence under the ESA?
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.
However, what a lot of people do not know is that certain types of leaves of absence are statutorily protected entitlements that employees have under the 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.
What are some types of leaves that are set out in the ESA?
Under the ESA an individual may have the right to take time off in the following situations:
- Pregnancy leave
- Parental leave
- Family responsibility leave
- Family medical leave
- Organ donor leave
- Family caregiver leave
- Critical illness leave
- Child death leave
- Crime-related child disappearance
- Domestic or sexual violence leave
- Sick leave
- Bereavement leave
- Declared emergencies and infectious disease leave
- Reservist leave
These leaves of absence all vary in duration. For example, probably the most common type of leave that almost every single employee has taken is sick leave. Under the ESA, most employees are entitled to take up to three days of unpaid job-protected leave per calendar year. However, there are other job-protected leaves under the ESA that are much longer than sick leave such as family medical leave which has up to 28 weeks of job-protected leave for an employee to be able to care for a seriously ill family member at risk of death.
New ESA protected Leave in 2025
In June 2025, a new statutorily protected leave of absence was added to the ESA called long-term illness leave. This leave provides eligible employees with unpaid leave of up to 27 weeks in a 52-week period due to a serious medical condition.
In order for the employee to qualify for long-term illness leave, the employee must have worked for at least 13 consecutive weeks, and must provide to the employer a certificate issued from a qualified health practitioner that states the employee has a serious medical condition and sets out the period that the employee will not be able to work due to the serious medical condition.
Can an employee be penalized by the employer for taking a leave of absence?
No. An employee has the right to take a leave of absence protected by the ESA and should be able to return to work at the same job they had before they went on leave. This means that the employee should come back to the same job with the same title, work hours, workplace location, benefits, responsibilities and pay. If the employee’s role no longer exists, then the employer must reinstate the employee to a comparable position if one is available.
An employer should not terminate or fire an employee because they took a leave of absence protected by the ESA. If the employer decides to fire someone for taking a leave of absence protected by the ESA, then the employer can expect that this course of action on their part may result in some serious consequences for the employer. For instance, the employer may be liable for termination and severance pay, an order of reinstatement, damages under the Ontario Human Rights Code, 1990 (“Code”) if the ESA protected leave also constitutes a protected ground under the Code, as well as moral and punitive damages.
Want more information? Schedule a consultation with an employment lawyer!
Zeilikman Law has helped both employers and employees deal with issues around job-protected leaves of absence by providing legal advice, preparing various policies, correspondence or other documentations, helping to negotiate a resolution to these issues, etc.
We have also written about this topic extensively on our website. Please look at our blogs, including “Maternity and Parental Leave and the Workplace” and “Can an employer terminate my employment while on disability or 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.
