LEAVES OF ABSENCE

The rules for each particular leave of absence are outlined within the region’s employment standards legislation, and each may vary slightly. Generally speaking, the employee must notify the employer in advance of their taking the leave, or if that is not possible, as soon as they are able to do so. This notice should be in writing, so that the employer has an official documentation that the employee is on leave. 

For several types of leaves, employers will require an employee to provide documentation to confirm that they are eligible to take such a leave. In the case of a medical or disability leave for example, employers may require documentation from a physician substantiating the leave. This does not mean that employers will be entitled to confidential medical information like a diagnosis, but they are entitled to know how long your work will be affected for.

There are a large number of leaves available depending on each province, and new leaves are often added to employment standards legislation to reflect changing scenarios (for example the COVID-19-related leaves). Some of the common examples of leaves are:

• Parental Leave
• Personal Emergency Leave
• Family Medical Leave
• Jury Duty Leave
• Organ Donor Leave
• Reservist Leave
• Crime-Related Child Death or Disappearance Leave

The leaves are different from province to province, and obviously the duration of the protected leaves is quite different. For example, personal emergency leave generally runs for only a few days (there are longer caregiver leaves, if required), whereas the crime-related child death or disappearance leaves can run in excess of 12 months or longer.

It is also important to note that while employees may require generic medical leaves to deal with an injury or illness, those are not broadly protected under employment standards legislation, and instead are covered under provincial and federal human rights laws.

Learn more about the types of leaves employees may be entitled to here.

There are two crucial entitlements for an employer to remember while an employee is on a protected leave.

First, that employee is on leave. These leaves are not a vacation. Employers should refrain from calling, texting, or emailing the employee unnecessarily during this time.

The other point to remember is that even though the employee is out of the workplace, they should be treated for all intents and purposes as though their service has continued uninterrupted. This means that they will continue to accrue vacation at the same rate, have the same eligibility for bonus and salary increases, and should have the same eligibility for advancements and promotions as well.

This may seem contrary to some employers’ intuition, but think of the situation differently. For example, to deny an employee on parental leave the opportunity for a promotion while they are off is effectively discriminating against them for becoming a parent. This would be prohibited by human rights legislation that protects both an individual’s gender, as well as their family status.

This is usually a thorny question, and the answer can be equally complex. While these leaves are job-protected, the reality is that yes, an employer can let an employee go under some circumstances. Generally speaking, you can let someone go while they are on leave, but you cannot let them go because they are on leave.

The reality for employers is that business needs may change over time, especially if an employee is on a lengthy leave. If a department closes, or a business shuts down entirely, the employer is not expected to jump through proverbial hoops just to keep an employee. The bottom line for employers is that if they are going to dismiss an employee while they are on leave, they will want to have a solid business case for doing so.

Otherwise, employees are likely to pursue a civil or human rights claim, alleging that any decision about their termination was made on account of their protected absence. If, for example, a new mother was the only person on a large team let go, the employee would be able to make a solid case that the decision to terminate was connected to their job-protected leave.

Yes. Just because a role is job protected, that does not mean that an employer needs to leave that seat vacant, especially if the employee is gone for longer than 12 months. It simply means that the person who is off needs to be able to return to the same (or an equivalent) seat upon their return. 

Industries such as teaching are largely built around contracts for employees filling in for absences. It is, of course, more difficult for many private companies to find a suitable employee who is willing to accept a job for a finite amount of time. This can be even more challenging in specialized roles, where the pool of available talent may be further limited.

While job-protected leaves are generous, the reality is that in cases of illness or trauma an employee may not be ready to return to work once their leave is up. Their health may not have adequately recovered, or they may be too traumatized to return to full duties.

If the employer has disability benefits available, the employee may be eligible for short-term or long-term disability payments. Employees often forget that disability is not just an injury to their physical body, but also includes mental health issues including anxiety and depression. Employees can speak with their physician about whether they think that they may be eligible for disability benefits. Insurance companies are quick to deny benefit claims, however disability lawyers frequently work with those individuals to fight insurance companies and get benefits claims properly instated.

Alternatively, larger employers might offer some sort of additional leave of absence policy, or may be able to work with the employee on a gradual return to some form of modified duties. If there is no other recourse available and an employee is simply not able to return to work then an employee may be forced to resign their position, or the employer may be able to terminate their employment contract due to ‘frustration’ – a legal scenario where one party can simply no longer perform a contract. Both of those scenarios are extreme however, and employers and employees should consult with us before considering that option.

The short answer is yes, but they should do so carefully. You can let someone go when they are on leave, or when they return, but you cannot let them go because they took a leave.

Employers have a duty to keep an employee’s job protected while they are on leave. In reality though this can be challenging to do, especially as business needs change and evolve. An employer may simply no longer have the need for someone in that role, or what happens frequently is they may find a temporary employee as a replacement who ends up out-performing the original employee, and they would rather make a switch of sorts. That second example would be offside, because the individual would not have lost their job if they didn’t take a leave.

The reality though is that employees may still be in a precarious position as they return from a leave, and terminating them immediately may quickly invite a wrongful dismissal claim, with allegations of discrimination included. For example, if a new father was terminated from his job the week that he returned from parental leave, it would be difficult not to draw the conclusion that he was penalized for being a parent.

Employers should speak with their trusted employment lawyer before making any termination decisions. We can help assess each individual situation, and find the ideal time to allow you to make your necessary business decisions.

This question comes up all the time, especially in the context of pregnancy and parental leave, and the answer is no. 

When an employee takes pregnancy/parental/maternity leave, they are eligible to collect employment insurance (EI) benefits while they are off work. This program made news again several years ago when the Trudeau government expanded the program from 12 months to 18 months of coverage, although that simply involved the same amount spread out in smaller payments over a longer period. However, EI only covers a portion of an employee’s earnings, and so some employers will offer a ‘top-up’ amount to support employees financially while on leave. 

These payments are entirely voluntary. Statistics Canada has shown that roughly one-fifth of new mothers in Canada received some sort of EI top-up, with payments more common in some provinces, and usually more common in the public sector. Additionally, these payments often come with terms that the employee must return to work once their leave is done, or else they must repay a portion or all of the additional money. This may be an effective strategy to ensure workforce stability and build corporate loyalty, but many employers will simply be unable to afford a top-up while also paying a new contract employee to fill the role.

Employers can assess their finances and standard market practices to see if offering a top-up program is right for them, but they are not required to do so.

There are effectively two different types of disability benefits, which is where things can become a bit complicated because there are really two different answers.

There are EI sickness benefits available for individuals who are not able to work due to a short-term illness. Those benefits run for a course of 15 weeks, and cover a portion of an employee’s earnings. Employees who will be out of the workplace for longer, however, may be eligible for CPP disability benefits. These benefits are for employees who have paid into CPP, but these applications can take a long time to process, and may not provide employees with the financial sustenance that they would need long term.

For employers who carry private insurance plans, the terms of coverage are up to the particular insurer. Some plans will require that employees are actively employed, or still in the workplace, at the time of their application. These benefits packages are highly dependent on the ‘fine print,’ and employers can help employees walk through their eligibility in a particular scenario.

Under Canadian law, you have several obligations to pregnant employees and those taking parental leave, including:

• Pregnancy Leave: You must grant eligible employees an unpaid job protected pregnancy leave, the length of which will depend on the jurisdiction where the employee is working. In Ontario, employees are entitled to up to 17 weeks of unpaid pregnancy leave, which can begin as early as 17 weeks before the employee’s due date.
• Parental Leave: You must grant eligible employees an unpaid job protected parental leave, the length of which will depend on the jurisdiction where the employee is working. In Ontario, parents can take up to 63 weeks of unpaid parental leave (61 weeks if they have also taken pregnancy leave). In some jurisdictions, the maximum parental leave is capped if being shared by parents who work for the same employer.
• Job Protection: You must reinstate employees returning from pregnancy or parental leave to their previous position. In some circumstances, you may be able to reinstate an employee to a comparable position.
• No Discrimination: You cannot discriminate against employees based on pregnancy or their intention to take parental leave.

You are generally not required to pay employees while they are on pregnancy or parental leave. However, you may have to continue benefit contributions and seniority accrual. Employees may be eligible for Employment Insurance (EI) benefits during this time.

Yes, you can request a medical certificate from a qualified healthcare practitioner confirming the pregnancy and estimated due date.

Pregnancy and parental leave can be extended in certain circumstances, such as if the child is hospitalized or if the employee takes other types of leave. The specific rules vary by province.

Employees are generally required to provide written notice of their intention to take pregnancy or parental leave, specifying the expected start date and, if possible, the anticipated return-to-work date.

• Federal (for federally regulated employers): Under the Canada Labour Code, employees must provide at least four weeks’ written notice before the start of their leave.
• Provincial/Territorial: Most provinces and territories require employees to provide four to eight weeks’ written notice. Some jurisdictions also specify a minimum notice period before the due date for pregnancy leave. In Ontario, an employee must provide two weeks’ notice to their employer before commencing a pregnancy or parental leave, unless the employee must stop working earlier (e.g. due to complications caused by the pregnancy).

It is best practice to encourage employees to provide as much notice as possible to facilitate planning and operational continuity. Always refer to the applicable legislation for precise notice requirements.

Yes, employees are generally required to provide written notice of their intention to return to work.

• Federal: Under the Canada Labour Code, employees must give at least four weeks’ written notice of their intended return-to-work date.
• Provincial/Territorial: Most provinces and territories have similar requirements, often mirroring the notice period required for the initial leave. In Ontario, employees are not required to advise their employer of the end date of their pregnancy or parental leave.

If an employee fails to or is not required to provide notice, the default assumption is that they will take their full entitlement. It is important to note that an employee’s failure to provide notice of the start or end of pregnancy or parental leave will not disentitle them to these leaves.

Employers should review the applicable legislation and clearly communicate notice expectations to employees to ensure compliance and a smooth return-to-work process.

You can find more information on the website of Employment and Social Development Canada (ESDC) and your provincial Ministry of Labour. You can also consult with an employment lawyer for advice on specific situations.

This will depend on the jurisdiction you work in. For example, in Ontario, you are entitled to up to 17 weeks of unpaid pregnancy leave and up to 63 weeks of unpaid parental leave. The combined total of maternity and parental leave cannot exceed 78 weeks.

This will depend on the jurisdiction you work in. For example, in Ontario, you can start your pregnancy leave up to 17 weeks before your expected due date. Parental leave can begin any time within 78 weeks of the child’s birth or the date the child comes into your care.

Your employer is generally not required to pay you during these leaves. However, you may be eligible for Employment Insurance (EI) benefits. You should apply for EI benefits well in advance of your leave.

No, your employer cannot refuse your request for leave if you meet the eligibility requirements, which generally include a minimum length of employment.

Yes, your employer must reinstate you to your previous position or a comparable one when you return from leave.

If you experience complications, you may be eligible for sick leave or a longer period of pregnancy/parental leave. It’s important to communicate with your employer and healthcare provider about your situation.

The required notice period varies slightly across Canada, but generally, you must provide your employer with written notice of your intention to take pregnancy or parental leave. The notice should include the expected start date of your leave and, if possible, the expected return-to-work date.

• Federal (for federally regulated employees): Under the Canada Labour Code, you must give at least four weeks’ written notice before the start of your leave.
• Provincial/Territorial: Most provinces and territories have similar notice requirements, often ranging from four to eight weeks. Some jurisdictions specify a minimum notice period before your due date for pregnancy leave. In Ontario, you must provide two weeks’ notice to your employer before commencing a pregnancy or parental leave, unless you must stop working earlier (e.g. due to complications caused by the pregnancy). It’s crucial to check the specific legislation in your province or territory for the exact requirements. It is always best practice to provide as much notice as possible.

Yes, you generally need to provide your employer with written notice of your intention to return to work. If you don’t, the presumption is generally that you will take your full entitlement.

• Federal: Under the Canada Labour Code, you must give at least four weeks’ written notice of your intended return-to-work date.
  Provincial/Territorial: Most provinces and territories have similar requirements, often mirroring the notice period required for the initial leave. Again, it’s essential to consult the specific legislation in your jurisdiction. In some cases, if you do not return on the date specified in your notice, you may be required to provide additional notice.

You can find more information on the website of Employment and Social Development Canada (ESDC) and your provincial Ministry of Labour. You can also consult with an employment lawyer for advice on your specific situation.