Do employers have to accommodate compassionate leaves of absence?achkarlaw-admin
The unexpected is a fact of life. When serious health and family crises arise, it can be difficult to manage them while also getting our work done. Compassionate leave, as prescribed under employment standards laws, is meant to address this situation. It protects leaves (unpaid) for employees who need to be away from work in order to care for or support a family member (defined broadly to include non-biological relationships) who is critically ill, injured, or undergoing end-of-life treatment.
In Ontario, family medical leave permits employees to take a leave to provide care or support to family members and to people considered to be like family, who are seriously ill and/or at risk of dying. The Employment Standards Act, 2000 (“ESA”) provides that up to 28 weeks of unpaid, job-protected leave can be taken within a 52-week period. This leave is available to ALL employees who are covered by the ESA, including full-time, part-time permanent or term contract employees. In order to qualify, employees must provide their employer with a certificate issued by a qualified health practitioner describing the serious medical condition affecting the family member you are required to care for and indicating a significant risk of death within the next 26 weeks.
What is “care and support”? Under the ESA, care and support include:
- Providing psychological or emotional support,
- Arranging care by a third-party provider, or
- Directly caring for or participating in the care of the family member.
It is important to note that, although you may be entitled to a family medical/compassionate care leave, you must still provide a written notice along with the required documentation to your employer prior to taking the leave. A medical certificate from a health practitioner is required, and the notice to the employer must be provided as soon as possible or if leave is more than four weeks, four weeks’ notice.
Does my employer need to pay me during my leave?
Employers are NOT required to pay your wages while on leave. For all leaves, legislation requires employers to provide the employee with the requested time off and allow employees to return to work when the leave has ended.
Can I return to my job when my leave ends?
Yes. Employees must return to the position they previously occupied when their leave began or a comparable position in which they will be required to have the same pay and benefits they had prior to their leave.
What happens if my employer doesn’t want to allow me to return to work?
They cannot lawfully do so. Employers must allow their employees to return to their job, or a comparable job, with the same or greater pay and benefits when they return from leave.
When does my compassionate care leave to start and when does it end?
Leave begins during one of the following weeks, whichever happens first:
- the week the health care practitioner signs the medical certificate;
- the week the health care practitioner examines the gravely ill family member; or
- the week the family member becomes gravely ill if the health care practitioner can determine that date (for example the date you got the test results)
The leave ends when:
- the 28 weeks of compassionate care are complete;
- the gravely ill family member dies or no longer requires care or support; or
- the 52-week period expires
Medical crises are a fact of all our lives. They are very stressful situations that we should be free to deal with without the additional worry of losing our job.
If you are an employee who is currently going through this, understand that you are entitled to a compassionate care leave to provide care or support to a gravely ill family member at risk of dying.
To take this leave, be sure to complete all the necessary steps to provide notice to your employer, as well as the required medical information. Under the law, if you take protected leave, your job will remain secure, so that once your leave is done you may return to your job, or a comparable job, with the same or greater pay and benefits.
If you are an employee whose accommodation request has been denied by your employer, or an employer who is facing a human rights claim, our team of experienced employment lawyers at Achkar Law can help. Contact us by phone toll-free at 1 (800) 771-7882 or email us at [email protected] and we would be happy to assist.