In Ontario, employers must navigate a complex landscape of employee rights and workplace regulations, particularly regarding leaves of absence. Understanding the various types of leave available to employees and the legal obligations imposed on employers is essential to ensuring compliance with employment laws and avoiding potential wrongful termination claims. Employers must accommodate legitimate leave requests and implement policies that align with the Employment Standards Act, 2000 (ESA) and other applicable regulations.
Types of Leave Available to Employees in Ontario
Ontario employment law provides employees access to several types of leave, each governed by specific rules and eligibility requirements. Employers must recognize and respect these entitlements to avoid Employment Standards-related complaints and foster a positive workplace culture.
Some of the more common leaves are set out below.
Parental Leave
One of the most common forms of leave is parental leave. Under the ESA, employees who have been employed for at least 13 weeks before the birth or adoption of a child are entitled to unpaid parental leave. Parental leave can be taken for a maximum of 61 weeks if the employee also took pregnancy leave or 63 weeks otherwise.
Sick Leave
Under the ESA, employees are entitled to up to three days of unpaid sick leave per calendar year, provided they have worked for at least two consecutive weeks. Sick leave can be used to recover from a personal injury, illness, or medical emergency.
Employees cannot take the leave for something unrelated to the illness, injury, medical emergency, or something that isn’t medically necessary. However, they are usually entitled to use sick leave for pre-scheduled surgery for an illness or injury.
In addition to the ESA, the Ontario Human Rights Code may require employers to accommodate employees with medical conditions beyond the ESA minimums.
Family-Related Medical Leaves
The ESA provides multiple job-protected leaves allowing employees to take unpaid time away from work to care for various family members.
Family caregiver leave allows employees to care for a seriously ill family member and can extend up to eight weeks per calendar year for each affected relative. This leave only applies to specified family members as set out under the ESA.
Family medical leave allows the employee to take up to 28 weeks off in a 52-week period to provide care or support to certain relatives or people who consider the employee to be a family member. To qualify for medical leave, a qualified health practitioner must issue a certificate indicating the family member has a serious medical condition with a significant risk of death occurring within 26 weeks.
Employees covered by the ESA may also be able to take critical illness leave to care for a critically ill family member. The ESA defines “critically ill” as “a minor child or adult whose baseline state of health has significantly changed and whose life is at risk of an illness or injury.” The employee may take up to 17 weeks of critical illness leave to care for an adult family member and up to 37 weeks to care for their minor child.
Other Leaves
Employees experiencing a personal emergency, such as illness, injury, or urgent family matters, may also be eligible for emergency leave. Employers must be prepared to respond appropriately to such requests, ensuring they follow proper procedures while respecting the employee’s rights.
Other statutory leaves include domestic or sexual violence leave, bereavement leave, and jury duty leave. Each category has its own set of rules regarding duration, eligibility, and required documentation. Employers must stay informed about these regulations and update their internal policies accordingly.
Employer Obligations Regarding Leave Requests
Employers have a legal duty to process leave requests fairly and in good faith. When an employee requests leave, assessing their eligibility under the ESA and other relevant statutes is crucial. Employers cannot refuse a request that meets the applicable legal criteria, nor can they take adverse action against an employee for exercising their rights.
Documentation & Privacy Concerns
In most cases, employees must provide advance notice of their leave, except in emergencies. Employers may require reasonable documentation to verify the need for leave, but they must ensure that any requests for evidence are not overly intrusive or in violation of privacy laws. For example, while an employer may ask for a medical certificate for an extended medical leave, they cannot demand specific details about an employee’s diagnosis.
Right to Reinstatement
Upon an employee’s return from leave, employers must reinstate them to their previous position or a comparable role with the same wages and benefits. Any reduction in hours, pay, or status could constitute a violation of the ESA and expose the employer to constructive or wrongful dismissal claims.
Best Practices for Avoiding Wrongful Dismissal Claims
One of the most significant risks employers face when handling leave requests is the potential for wrongful dismissal claims. Employees who believe they were dismissed due to taking or requesting leave may seek legal recourse, leading to costly litigation and reputational harm. There are several best practices employers can adopt to mitigate this risk.
Handle Leave Requests in Good Faith
Employers must ensure all termination decisions are based on legitimate, non-discriminatory grounds. If an employee’s role is eliminated while on leave, the employer must be able to demonstrate the termination was unrelated to the leave itself and was part of a broader restructuring or economic necessity.
Maintain Comprehensive Records
Proper documentation is key to defending against wrongful dismissal claims. Employers should maintain detailed records of leave requests, approvals, and any relevant communications with employees. Additionally, performance evaluations and disciplinary actions should be well-documented to show that any employment decisions were based on objective factors rather than retaliation.
Establish & Communicate Leave Policies
Employers should establish clear leave policies that align with Ontario’s employment laws to create a legally compliant and supportive work environment. These policies should be communicated effectively to all employees, ensuring they understand their rights and responsibilities when requesting leave. All decision-makers, including personnel managers and HR staff, should understand the ESA, the Human Rights Code, and applicable case law to prevent inadvertent violations.
Regularly reviewing and updating leave policies in consultation with legal counsel will ensure continued compliance with evolving employment laws. By staying informed and proactive, employers can reduce legal risks and maintain a positive work environment that supports both operational needs and employee well-being.
Create a Safe Workplace Culture
Employers should also foster an open and accommodating workplace culture where employees feel comfortable discussing their leave needs without fear of reprisal. Encouraging dialogue and providing reasonable accommodations where necessary can help reduce workplace conflict and improve employee retention.
In conclusion, Ontario employers must approach leaves of absence with a thorough understanding of employee rights and legal obligations. By adhering to the ESA, handling leave requests fairly, and implementing best practices, businesses can minimize the risk of wrongful dismissal claims while fostering a compliant and inclusive workplace. Ensuring that policies are clear, procedures are followed, and employees are treated equitably will contribute to a positive and legally sound employment environment.
Contact Willis Business Law for Dynamic Employment Law Advice in Windsor-Essex County
Willis Business Law provides top-tier employment law advice and legal services to businesses in Windsor-Essex and the surrounding areas. Led by J.P. Karam, our team of talented employment lawyers represents employers across both the private and public sectors in industries such as manufacturing, technology, transportation, financial services, and agriculture. They also collaborate with in-house professionals, offering practical guidance and valuable insights into the daily challenges faced by human resources teams. To schedule a confidential consultation, please contact us online or call 519-945-5470.
