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Minister of Labour Introduces Job-Protected Family Caregiver Leave

On December 8, 2011 the Minister of Labour introduced legislation that, if passed, will grant employees in Ontario with up to eight (8) weeks of unpaid leave to care for family members and relatives suffering from a serious medical condition.

This new job-protected leave, the sixth type of leave of absence to be passed by the Ontario government in the last seven years, would provide employees with up to eight (8) weeks of leave annually to care for the following who suffer from a “serious medical condition”: spouses, children and parents (including step and foster relationships of either the employee or the employee’s spouse), grandparents (including step relationships of the employee or the employee’s spouse), siblings and relatives who are dependent on the employee for care.  In its current draft, Bill 30, Family Caregiver Leave Act places few limits on who may claim this job-protected leave and does not define a “serious medical condition” – a critical factor in determining an employee’s entitlement to this unpaid leave.

While most are sympathetic to employees who face the daunting task of trying to care for seriously ill family members while continuing to work, we are concerned with what has become a “patchwork” approach to dealing with the issue through over-regulation and ad hoc amendments to the Employment Standards Act, 2000 (the “ESA”).    In addition to personal emergency leave, declared emergency leave, family medical leave, reservist leave and organ donor leave, the government now proposes yet another kind of job-protected leave to address what it believes is a gap in the current legislation.  The proposed legislation also provides that the new caregiver leave can be taken in addition to any other leave provided for in the ESA.  The result is a confusing maze of leave provisions that employers must navigate and, with the exception of personal emergency leave which applies only in workplaces with more than fifty (50) employees, there is no recognition of the significant burden these various leaves place on smaller employers who cannot absorb employee absences in the same way that larger employers can.   In addition, with onerous reinstatement obligations and significant liability in the event of a breach of these “protected” leaves of absences, employers are left to manage complicated legal obligations regardless of size and available resources.

In anticipation of this legislation becoming law in the near future, employers are encouraged to start reviewing all of their internal leave policies to ensure they will not have unnecessary overlapping obligations in the event that an employee is required to take a leave of absence unexpectedly.    In addition, strategies to address such potential longer term absences such as staff cross-training or outsourcing solutions should be considered in advance.

The CCP team will continue to monitor the status of this legislation and will keep you updated on new developments.  Please feel free to contact any of our lawyers to discuss this new leave provision, how it may impact your current workplace policies, or your organization’s legal obligations with this or any other job-protected leave under the ESA.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.



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