The rules surrounding unpaid leaves of absence are important for both employees and employers to understand. Generally, there are two types of leave which are very different from each other: job-protected leave and unprotected leave.
Protected Leave
In Ontario, the Employment Standards Act, 2000 (the “ESA”) provides for several categories of protected leave. These categories are:
- Pregnancy Leave;
- Parental Leave;
- Family Medical Leave;
- Organ Donor Leave;
- Family Caregiver Leave;
- Critical Illness Leave;
- Child Death Leave;
- Crime-Related Child Disappearance Leave;
- Sick Leave;
- Family Responsibility Leave;
- Bereavement Leave;
- Infectious Disease Emergencies Leave; and
- Reservist Leave.
Each of these categories have different requirements, including the minimum period of employment to be eligible for leave, the maximum length of the leave, the notice that must be provided to the employer, and the documentation that must be provided to their employer upon their request in support of the employee’s entitlement to leave.
These requirements are outlined below for some of the most common categories of leave:
While the requirements of each category of leave are different, there are common features of each type of protected leave:
Unpaid Leave
The above categories of leave are unpaid, and there is no requirement for the employer to continue paying the employee during their period of leave. The employee may be eligible to receive Employment Insurance benefits during their period of leave, including during a pregnancy leave or a parental leave. While some employers will offer to “top-up” these benefits, this is entirely voluntary and the employer is not required to do so unless the employment contract specifically provides for it.
Continuation of Benefits
Unless the employee elects otherwise, the employee must continue to participate in the employer’s benefit plans during their period of leave, including pension plans, life insurance plans, accidental death plans, extended health plans and dental plans, and the employer must continue to pay the employer’s contributions for the plans.
Reinstatement
Upon the conclusion of an employee’s leave, the employer must reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.
Wage Rate
The reinstated employee is to be paid at the rate they most recently earned with the employer, or the rate they would be earning if they had worked throughout the leave, whichever is greater.
Leave of Absence Related to COVID-19
The ESA provides for a protected unpaid leave of absence due to certain reasons related to the COVID-19 pandemic. For instance, the Infectious Disease Emergency Leave (“IDEL”), a regulation under the ESA enacted by the Ontario government in the early days of the pandemic, provides for protected unpaid leave where the employee’s hours of work are temporarily reduced or eliminated by the employer for reasons related to COVID-19.
In addition, the ESA provides that an employee is entitled to a leave of absence without pay due to several reasons including the following:
- The employee is under quarantine or isolation;
- The employee is under a direction given by their employer in response to a concern that the employee may expose other individuals in the workplace to COVID-19; and
- The employee is directly affected by travel restrictions related to the COVID-19 pandemic and cannot reasonably be expected to travel back to Ontario.
In such cases, the employee will generally be entitled to return to their position when the leave ends, along with the other protections common to all protected leaves, as outlined above.
Unprotected Leave
If an employee is granted a leave of absence from their employer for a reason other than the categories set out in the ESA, then such a leave will not be considered a protected leave.
Subject to certain exceptions, that means that employers will not be required to reinstate an employee once they seek to return, and if they are reinstated, their wages do not need to be at the same rate as they were before the leave.
In some cases, an employer may have a more generous leave of absence policy than the statutory requirements, or a longer or more broad type of leave of absence may be provided for in the employment contract. These scenarios tend to be more common in larger companies. In such cases, the employer may have contractual duties to the employee to keep their position available to them upon their return.
Further information regarding leaves of absences can be found in a FAQ section on our website.
Conclusion
Whether you are an employee or an employer, it is important to understand the rules and requirements surrounding unpaid leaves of absence. If you are an employee, we can help you navigate what to do if you are denied permission to take a leave of absence, or if your employer does not agree to return you to a comparable position once your leave ends.
If you are an employer, we can assist you in responding to employees’ leave requests, and helping you ensure that the employee fulfills their duties and obligations.
If you have any questions about your situation or if you would like to get legal advice, please feel free to contact us.
