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Minister of Labour Re-tables Leave Act

Three New Job-Related Leaves Expected to be Passed in Short Order

On March 5, 2013, Bill 21: The Employment Standards Amendment Act (Leaves to Help Families) was tabled. The amendments proposed by the Act create three new job protected leaves, including Family Caregiver Leave, which was proposed in 2011 as Bill 30 – Family Care Giver Act.  The “new” proposed Act, if passed, would bring the number of leaves that are recognized under the Employment Standards Act (the “ESA”) to ten.  As reported previously in our December 15, 2011 blog, “the result would be a confusing mix of leave provisions that employers must navigate” which at the time involved only one additional leave being tabled by the government.  Bill 21 proposes the following three new job-protected leaves:

1. Family Caregiver Leave:  Up to eight (8) weeks of unpaid, job-protected leave annually to care for categories of persons who suffer from a “serious medical condition” including spouses, children/ parents/grandparents (including step and foster relationships of either the employee or the employee’s spouse), siblings and relatives who are dependent on the employee for care as well as any individual the legislation may prescribe as a family member.

2. Critically Ill Child Care Leave:  Up to 37 weeks of unpaid, job-protected leave to provide care to a “critically ill child” defined as a child under 18 years old who a qualified medical health practitioner has certified has a life-threatening illness or injury for which continued parental care or support is required.  This includes a step-child or foster child.  Any employee who has been employed by his or her employer for at least six consecutive months will be entitled to this job-protected leave.

3. Crime-Related Child Death and Disappearance Leave:   Up to 52 weeks (for parents of a missing child) and up to 104 weeks (for parents of a child that has died as a result of a crime) of unpaid, job-protected leave for any employee employed for at least six consecutive months.  The employee is not entitled to the leave if they have been charged with the crime, or if it is probable, considering the circumstances, that the child was a party to the crime.

It is important to note that these new leaves would be separate and apart from the current Family Medical Leave (s. 49(1) of the ESA), which is available when a family member has a serious medical condition with a significant risk of death occurring within 26 weeks.  A doctor’s note would be required to qualify for Family Caregiver Leave and Critically Ill Child Care Leave.  The Critically Ill Child Care Leave and Crime Related Child Death and Disappearance Leave would complement new benefits created under the federal Helping Families in Need Act which received Royal Assent on December 14, 2012.

This federal legislation amends the Employment Insurance Act for parents with critically ill children, and will provide income support for up to 35 weeks to eligible parents caring for a child (under 18 years of age or younger) with a critical injury or illness. The entitlement criteria is the same as other EI special benefits programs, where employees will have to have worked a minimum of 600 hours in the last year. Self-employed workers who have opted into the EI program will need to have earned income in the previous calendar year ($6,342 in 2013) to be eligible for the benefit.

Similar assistance is provided in support of the Crime-related child death or disappearance leave. Effective January 1, 2013, a new Federal Income Support Grant for parents of murdered or missing children came into existence.  The new grant provides payment of $350 per week for up to 35 weeks to parents of murdered or missing children (less than 18 years of age), whose death or disappearance is the result of a suspected Criminal Code offence.  To receive this taxable grant, affected parents will need to have earned a minimal level of income in the previous calendar year ($6,500) and take leave from their employment.

We are encouraged by the cooperation or at least like-minded thinking of the provincial and federal governments, however, it does not defray the considerable juggling required by employers to address such leaves in terms of staffing and work scheduling. As noted in CCP’s previous Blog “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”.

CCP 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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