Leaves of Absence (2004)
Under the Employment Standards Act in Ontario, there are three types of leaves of absence available for employees: Pregnancy Leave, Parental Leave and Emergency Leave. What is significant is in the Act, is what could happen to an employer if it intimidates, dismisses or otherwise penalizes an employee because the employee is or will become eligible to take a leave of absence. Firstly, let’s review in basic terms the three types of leave.
Pregnancy Leave is available to a “pregnant employee” provided she has worked with her employer for longer than 13 weeks. The leave must begin on the earlier of 17 weeks before her baby is due to be born and the day of birth. The leave is as long as 17 weeks in length and is on a without-pay basis. There are provisions in the Act relating to when to provide notice to the employer, when the leave ends, and changing the dates of a leave.
Parental Leave is available to a parent of either sex who is a parent of a child born to him/her or to a child “coming into the employee’s custody, care and control for the first time.” One may end a pregnancy leave and go immediately into a parental leave. Parental Leave lasts up to 35 weeks if the employee also took a Pregnancy Leave and 37 weeks if no Pregnancy Leave was taken. An employee wishing to end his/her employment at the end of a Parental Leave must provide similar the employer with 4 weeks notice. There are additional provisions relating to changing the dates of a leave and notice periods.
Emergency Leave is available to an employee whose employer regularly employs 50 or more employees. One may go on such a leave because of illness, injury or medical emergency to themselves; death, illness, injury or medical emergency to one’s spouse, or family members (defined by the Act) or because of an “urgent matter” concerning an individual defined in the Act. This kind of leave is available for up to 10 days. Notice should be provided prior to taking the leave or as soon as possible after beginning a leave. The employer may require evidence “reasonable in the circumstances” that the employee is entitled to take the leave.
Section 74 of the Act states that no employer shall intimidate, dismiss or otherwise penalize an employee who is or will take a leave of absence. The employer bears the burden of proving that they did not contravene these provisions. Section 132 of the Act states that if an employer contravenes the Act or regulations or fails to comply with an order, direction or other requirement, is “guilty of an offence and on conviction is liable, if a corporate employer, a fine of not more than $100,000. Section 133 provides that in addition to any fines, the employer may be ordered to pay the employee any wages that are owing to him/her or reinstate the employee or compensate the employee for any loss incurred as a result of the contravention.
If you are an employee who is or will be entitled to take a leave of absence and believe that your employer has breached its obligations in the Act, please do not hesitate to contact me to review your specific situation. There is much that can be done.
