A leave of absence allows employees to take unpaid and, in some instances, paid time off from work. An employee may be eligible for a leave of absence regardless of whether they are full-time, part-time, permanent, or on a term contract. Ontario’s Employment Standards Act, 2000 (the “ESA”) prohibits employers from penalizing employees for taking, planning or asking about a leave of absence they are entitled to, and human rights laws in Canada protect employees from being discriminated against and may require employers to accommodate an employee, for example because of disability or family status.
Leave of Absence & Absenteeism
Job Protected Leaves
In Ontario, certain types of leaves are not discretionary, and therefore employees have a legal right to take time off work. Under the Employment Standards Act, an individual may have the right to take time off in the following situations:
- ∎ Pregnancy
- ∎ Parental
- ∎ Sick leave, family responsibility and bereavement (these replaced personal emergency leave in 2019)
- ∎ Long-term illness
- ∎ Family caregiver
- ∎ Family medical
- ∎ Critical illness
- ∎ Organ donor
- ∎ Reservist
- ∎ Domestic or sexual violence
- ∎ Child death or crime-related child disappearance
- ∎ Declared emergency or infectious disease emergency
- ∎ Job seeking, after a notice of mass termination
The ESA prescribes some minimums regarding an employee’s entitlement to take a leave of absence. These minimums cannot be contracted out of. The length and eligibility criteria vary for each of these non-discretionary leaves of absence. For example, pregnancy leave is up to 17 weeks and parental leave is up to 61 or 63 weeks, while sick leave is three days in a calendar year. Most ESA leaves are unpaid; one exception is domestic or sexual violence leave, where the first five days in a calendar year are paid. Employment Insurance benefits may be available during some leaves. An employer can pay for more days of a leave of absence than the ESA requires, but it is not mandatory. In addition, under the Employment Standards Act, an employee generally has the right to continue to participate in the employer’s group benefit plans during a leave, such as health insurance, dental plans, and accidental death coverage.
Most importantly, once the non-discretionary leave has ended, employees are generally entitled to be reinstated to the same job. If that job no longer exists, the employer will be required to reinstate the employee in a comparable position.
How Can Law Wise Help Employers?
As an employer, it is important to ensure that all rules relating to leaves of absence are properly followed, including the rules on when medical notes supporting a leave can and cannot be required. For example, since October 28, 2024, employers cannot require a certificate from a qualified health practitioner for ESA sick leave. A leave of absence is a personal entitlement, and as such, more than one employee may be taking unpaid leave under the ESA at any given time. This places a burden on the employer, who may have to cover the absence of experienced employees with temporary replacements. We understand the importance of developing and updating procedures, policies and strategies to manage leaves of absence while ensuring all statutory requirements are met.
We can provide information and advice on matters such as the requirements for medical notes, accommodation, the frustration of contracts, and discontinuance of benefits during certain long-term absences. We can also represent your company in the course of a lawsuit or any other legal process, both before legal proceedings are commenced and throughout them, if necessary.
Call us at +1 647 948 7819 today!
How Can Law Wise Help Employees?
If you have questions or concerns regarding your legal entitlement to take a leave of absence, contact our employment lawyers today to discuss your options.
Call us at +1 647 948 7819 today!