GONE BUT NOT FORGOTTEN?: NAVIGATING THE LEGAL LANDSCAPE
2013 Employment & Labour Conference Toronto GONE BUT NOT FORGOTTEN?: NAVIGATING THE LEGAL LANDSCAPE OF STATUTORY LEAVES OF ABSENCE By Leslie A. Frattolin and Michael S. Richards I. 1 INTRODUCTION There are several protected leaves of absence contemplated by employment standards legislation in the various provinces and territories throughout Canada and in the federal jurisdiction. Both large and small businesses are challenged by requests for leaves of absence, how to deal with employees on long and short leaves and what to do when they return. Human resource professionals are generally well aware of the protected leaves of absence that are provided for by employment standards legislation, including pregnancy / maternity leaves of absence, parental leaves of absence, and personal emergency / sick / family medical leaves of absence. However, there are frequently issues that arise with respect to an employee’s entitlements during a protected leave of absence as well as their entitlements upon the conclusion of that leave of absence. This paper will provide an overview of who is entitled to pregnancy / maternity, parental and personal emergency / sick / family medical leaves of absence. It will also address an employer’s obligations both during a protected leave of absence and following the conclusion of the protected leave of absence. In exploring these requirements and obligations, we will consider Company ABC, which is a hypothetical company in Ontario subject to the Ontario Employment Standards Act, 2000 and has, among others, the following three employees: 1 The authors wish to thank Pooja Punjabi, articling student for her assistance in researching and drafting this paper. ©Davis LLP, 2013 2013 Employment & Labour Conference Toronto Fred, who is employed by Company ABC as a sales agent. Fred recently informed Company ABC that he and his partner have adopted a baby and he intends to take some time off to be at home with the new baby. Marta, who is employed by Company ABC as an administrative assistant is pregnant and will need time off. Christina, who is employed by Company ABC as an Executive Director. Christina’s son is ill and she can’t find a babysitter. We will discuss what Company ABC is obligated to do once Fred, Marta and Christina are on their leaves of absence: Will Fred, Marta and Christina continue to accrue service? Are they entitled to vacation time? Are they entitled to benefits? We will also look at Company ABC’s obligations when Fred, Marta and Christina are ready to return to work, in particular: What if there is no position to return to due to a downsizing or if their temporary replacement turns out to be a more productive and efficient employee? This paper will provide you with an understanding of the requirements and obligations that an employer has to those employees on protected leaves of absence in order to assist you with navigating the complex legal landscape of protected leaves of absence. II. PREGNANCY / MATERNITY & PARENTAL LEAVE All jurisdictions in Canada require employers to provide employees with an unpaid pregnancy 2 leave of absence. With the exception of Alberta, the duration of the unpaid pregnancy leave of absence is either seventeen or eighteen weeks. 2 In some jurisdictions, this is called maternity leave. For the purpose of this paper, we use the term pregnancy leave to refer to either pregnancy leave or maternity leave granted by employment standards legislation. ©Davis LLP, 2013 2013 Employment & Labour Conference Toronto Similarly, all jurisdictions in Canada require employers to provide employees with an unpaid parental leave of absence. Most jurisdictions’ parental leaves of absence range from thirty-five to thirty-seven weeks. However, in Quebec employers are required to provide employees with up to fifty-two weeks of parental leave. In Quebec, employers are also required to provide male employees with up to five days paternity leave. The employment standards legislation of each province and territory as well as the federal jurisdiction stipulates what, if any, are the eligibility requirements for commencing a pregnancy and/or parental leave. Similarly, the date on which a pregnancy and/or a parental leave of absence may begin is also stipulated, as well as requirements for the length of notice an employee must give prior to commencing a pregnancy and/or a parental leave. Attached as Schedule “A” to this paper is a chart summarizing the length and various qualifications required to take a pregnancy and/or parental leave for each jurisdiction. III. EMERGENCY, SICK OR FAMILY MEDICAL LEAVE OF ABSENCE Most jurisdictions in Canada provide employees with an unpaid leave of absence for personal emergency, sick, and/or family medical leave. The duration of these leaves of absence vary between the jurisdictions and often overlap with other protected leaves of absence. In addition, the employment standards legislation of each province and territory as well as the federal jurisdiction stipulates what, if any, are the eligibility requirements for commencing a personal emergency/ sick/family medical leave of absence as well as what information an employer can require an employee to produce to substantiate the leave of absence. Attached as Schedule “B” to this paper is a chart summarizing the types of personal emergency / sick and/or family medical leaves for each jurisdiction. IV. WHAT IS AN EMPLOYER REQUIRED TO DO DURING A PROTECTED LEAVE? ©Davis LLP, 2013 2013 Employment & Labour Conference Toronto Let’s assume that Fred, Marta and Christina work in Ontario and that each qualified for a protected leave of absence under the Ontario Employment Standards Act, 2000. Fred is requesting a parental leave of absence, Marta is requesting a pregnancy and parental leave of absence and Christina is requesting her personal emergency days. The protected leaves of absence provided to Fred, Marta and Christina do not require that they be paid while they are off work. However, there is nothing in employment standards legislation which prohibits an employer from providing a greater right or benefit than that required under employment standards legislation. A greater right or benefit is an entitlement that is greater than the minimum entitlement provided for under employment standards legislation. For example, an employer will often provide a greater right or benefit to an employee in the form of vacation. An employee may receive three weeks’ vacation per year which is a greater benefit than the two weeks’ vacation per year that is provided for under the Ontario Employment Standards Act, 2000. As a result, employers may, and often do, provide for paid sick days or “top-up” for pregnancy leaves and/or parental leaves. Employers should be cautious in interpreting whether a benefit is actually a greater right or benefit within the meaning of employment standards legislation. Otherwise, an employer may be subject to dual obligations. In addition, eligible employees can apply for income support benefits under the federal Employment Insurance program. Each jurisdiction provides various protections to employees during their leaves of absence including protections with respect to: length of service, length of employment and seniority; benefit plans; and vacation entitlements. ©Davis LLP, 2013 2013 Employment & Labour Conference Toronto (i) Length of Service In Ontario, Fred, Marta and Christina’s leaves of absence will be included in their length of service when calculating any of the following for the purposes of determining their rights under the Ontario Employment Standards Act, 2000, a company policy or under an employment contract: the length of their employment, whether or not it is required to be “active” employment; the length of their service, whether or not that service is “active”; and their seniority. However, under the Ontario Employment Standards Act, 2000, the length of their leave of absence will not be included in determining whether a probationary period under any employment contract is complete. Often, an employment contract will specify that an employee is not entitled to participate in benefit plans until the employee has completed the probationary period as set out in the employment contract. Take for example, Christina. Christina’s employment contract includes a three month probationary period during which time Christina is not eligible for benefits. Christina has been employed with Company ABC for two months before she is required to take her ten days personal emergency leave in order to care for her son. The ten days personal emergency leave of absence will not be included in determining whether she has completed her three month probationary period under her employment contract for the purpose of calculating her entitlement to benefits. Once she returns to work following her personal emergency leave of absence, the ten days personal emergency leave will not count against the completion of her three month probationary period under her employment contract. However, the length of an employee’s leave of absence will be included in determining an employee’s entitlement to notice of termination or pay in lieu thereof. Therefore, the duration of an ©Davis LLP, 2013 2013 Employment & Labour Conference Toronto employee’s leave of absence will be included in order to determine the amount of notice of termination or pay in lieu thereof an employee is entitled to under the Ontario Employment Standards Act, 2000. (ii) Benefit Plans Employees in Ontario are also entitled to continue to participate in certain benefit plans during a leave of absence that are specifically identified by the Ontario Employment Standards Act, 2000, including: pension plans; life insurance plans; accidental death plans; extended health plans; and dental plans; (collectively, the “Benefit Plans”). Under the Ontario Employment Standards Act, 2000, short-term disability and long-term disability plans are not specifically identified as a benefit plan that employees on a protected leave of absence are entitled to continue to participate in. However, the Regulations to the Ontario Employment Standards Act, 2000, establish that an employee on a protected leave of absence is entitled to continue to participate in a benefit plan other than those specifically identified by the Ontario Employment Standards Act, 2000, unless those benefit plans prohibit an employee from participating in the benefit plan while on any leave of absence and not just those protected leaves of absence under employment standards legislation. Therefore, only where a short-term disability or long-term disability plan denies access to short-term disability and long-term disability benefits ©Davis LLP, 2013 2013 Employment & Labour Conference Toronto during non-statutory leaves of absence can an employee be denied access to short-term disability and long-term disability benefits while on a statutory leave of absence. Under the Ontario Employment Standards Act, 2000, employers are also required to continue to make all required employer contributions to the Benefit Plans throughout the duration of a protected leave of absence and an employee has a corresponding obligation to continue to make his or her share of the contributions to the Benefit Plans. This is the case even where an employee’s share of the contributions to the Benefit Plans are a percentage of the employee’s wages. In that case, the amount of the employee’s contribution would be determined with reference to the wages that the employee received prior to going on the leave. The requirement that an employer continue to make contributions to benefit plans is not absolute. An employee may refuse to pay their own contributions to the benefit plans for the duration of the protected leave of absence. In this case, an employee is generally required to inform an employer of his or her decision not to make their own contributions to the Benefit Plans at the same time that the employee provides notice of his or her leave of absence to the employer. The following examples summarize what an employer is required to do where an employee elects not to pay their Benefit Plan contributions. Take for example, Marta. At the same time that Marta gives notice of her intention to take pregnancy and parental leave, Marta advises Company ABC that she does not intend to continue paying her share of the Benefit Plan contributions. What is Company ABC obligated to do? Because Marta has advised Company ABC that she does not intend to continue paying her share of the Benefit Plan contributions, Company ABC is not required to pay its share of Marta’s benefit contributions during her leave of absence, and Marta’s benefits will lapse for that period. ©Davis LLP, 2013 2013 Employment & Labour Conference Toronto To be prudent, Company ABC should advise Marta that the consequences of her failure to continue paying her share of the Benefit Plan contributions is that her benefits will lapse for the duration of her leave of absence. Fred’s situation is quite a bit different from Marta’s. Fred did not advise Company ABC at all about whether he wished to continue to pay his share of the Benefit Plan contributions in order to continue his Benefit Plan coverage during his parental leave. As a result, Company ABC is obligated to continue to pay Company ABC’s share of the Benefit Plan contributions during the parental leave. It turns out that Fred cannot pay his share of the Benefit Plan contributions. What is Company ABC obligated to do? Company ABC can proceed in one of two ways: o First, Company ABC can pay both its and Fred’s share of the benefit plan contributions for the entire duration of the parental leave of absence. With Fred’s written authorization, Company ABC can deduct Fred’s share of the contributions from his wages after Fred returns to work. o Second, with respect to non-pension benefits, Company ABC can pay both its and Fred’s share of the benefit plan contributions, but for a pro-rated portion of the leave of absence. So, if Company ABC’s share of the benefit plan contribution is 50%, Company ABC would pay 100% of the benefit plan contributions for 50% of the parental leave and coverage would lapse for the remaining 50% of the parental leave. With respect to pension benefits, Company ABC would pay only its contribution for the entire duration of the leave of absence and Fred would have the right to make up his share of the contribution later on. (iii) Vacation Time Entitlements ©Davis LLP, 2013 2013 Employment & Labour Conference Toronto In Ontario, an employee on a protected leave of absence is entitled to take their employment standards entitlement to vacation time immediately upon the expiration of the leave of absence if the employee’s entitlement to vacation must be taken on a day where the employee is on a leave of absence. This requirement is best illustrated by using Fred as an example. Fred is entitled to the minimum standard of two weeks’ vacation time under the Ontario Employment Standards Act, 2000 and is required to take his vacation within ten months of the year in which it is earned. Fred was to use his vacation from 2011 by October 30, 2012. Fred did not take his vacation before beginning his parental leave of absence and was on his parental leave of absence from June 1, 2012 until January 31, 2013. As a result, Fred is entitled to take his two weeks of vacation from 2011 immediately following the expiration of his parental leave of absence on January 31, 2013. In Ontario, where an employee would otherwise have to forfeit vacation due to being on a protected leave of absence, the Employment Standards Act, 2000 gives an employee the right to defer taking vacation until the leave of absence has expired, or if the employer and the employee agree, on a later date. This requirement is best illustrated by using Marta as an example. Under Marta’s contract of employment, she is entitled to three weeks paid vacation time per year. With respect to the one week of vacation that is over and above the Ontario Employment Standards Act, 2000 minimum standards, Marta’s employment contract has a “use it or lose it” clause that stipulates the extra week of vacation must be used by December 31 of each yea or it is paid out. Marta is on her combined pregnancy and parental leave from July 1, 2012 until July 1, 2013. Because Marta did not take the extra week of vacation before she began her leave of absence, she has the option of taking that extra week when her leave ends on July 1, 2013 or at a later date if she and Company ABC agree. ©Davis LLP, 2013 2013 Employment & Labour Conference Toronto (iv) Vacation Pay Entitlements In Ontario, whether an employee is entitled to vacation pay during a protected leave of absence will depend on how an employee earns vacation pay. If an employee earns vacation pay as a percentage of wages, an employee who is not earning wages because the employee is on a protected leave of absence, will not have earned any vacation pay during their leave of absence. Take for example, Marta. Marta’s contract of employment provides that she is entitled to two weeks of vacation after each year of employment and vacation pay at 4% of gross wages earned in that year. Marta is on a combined pregnancy and parental leave for all 52 weeks of the year. Marta would be entitled to two weeks’ vacation time at the end of the year, but her vacation pay, calculated at 4% of the wages earned in the year, would be zero. In Ontario, if an employee earns vacation pay through service, an employee will receive vacation pay for the time that the employee is providing service to the employer, including while the employee is on a protected leave of absence. For example, if Marta’s contract of employment provided for two weeks of paid vacation per calendar year, she would be entitled to two weeks paid vacation at the end of her year of leave. VI. WHAT ARE AN EMPLOYER’S OBLIGATIONS ONCE THE LEAVE OF ABSENCE EXPIRES? (i) Reinstatement Obligation In every jurisdiction in Canada, employers are obligated to place employees returning from protected leaves of absence in the position the employee occupied prior to commencing the leave of absence, if that position is available. In determining what position the employee most recently held, all of the terms and conditions of the employee’s previous position must be examined, including the location of job, the hours of work and the degree of responsibility. ©Davis LLP, 2013 2013 Employment & Labour Conference Toronto The location of the job is extremely important. It is not sufficient to reinstate an employee in the same position at another location, even where that other location is in the same city. An employer has been found to violate the reinstatement obligations under the Ontario Employment Standards Act, 2000 where an employee was reinstated to the same job he or she held before his or her leave but at a different location. What happens where a temporary employee has been hired to perform the duties and responsibilities of an employee on a protected leave of absence and the employer prefers the temporary employee’s performance, productivity and/or profitability? Take for example, Fred. Fred has been on a parental leave of absence and Nancy was hired by Company ABC to perform the duties and responsibilities while Fred was on his parental leave of absence. Nancy is excelling at her job. Both productivity and profits are double what they were while Fred was working. Can Company ABC offer Fred another, comparable job? The answer is no. Although Nancy was completing Fred’s job more productively and profitably, that is not a valid reason for not reinstating Frank in the position he previously held. If the job is still there, if the same work is being done, Frank has the right to be reinstated to perform the same work. What happens when an employee recants on an agreement to return to work in a different position or on different terms and conditions than the pre-leave position? Often, before commencing a leave of absence, an employee will approach an employer about returning to work on a part-time basis or under some other terms and conditions, and will reach an agreement with the employer about returning to work on that basis. agreement? ©Davis LLP, 2013 What happens if an employee later recants on such an 2013 Employment & Labour Conference Toronto This is what happened with Christina. Christina and Company ABC worked out an agreement where she would return to work in a different position that would allow for part-time hours. However, immediately before Christina returned from her leave of absence, she advised Company ABC that she no longer wanted to return to work on a part-time basis and that she preferred the hours of her position before she commenced her leave of absence. What is Company ABC obligated to do? Company ABC is obligated to offer Christina reinstatement to her previous position. The alternate arrangement that Christina and Company ABC worked out did not allow her to exercise her right to reinstatement to her previous position. Christina and Company ABC are not allowed to contract out of the Ontario Employment Standards Act, 2000 by abdicating Christina’s right to reinstatement to her previous position. (ii) Reinstatement to a Comparable Position If the position that the employee occupied prior to commencing the leave of absence does not exist, an employer is required to provide the returning employee with a comparable position. It is not sufficient to merely offer an employee a position with the same wages and benefits. Rather, all of the aspects of the “comparable position” must be reviewed. A decision by an Ontario Employment Standards Officer in Re American Can Canada originally set out the factors to consider in determining whether a position is “comparable”. The Ontario Ministry of Labour has adopted this approach and will consider the factors set out below: o A. Location of Job: If the “comparable position” exists in another city or town, the work may not be comparable. ©Davis LLP, 2013 2013 Employment & Labour Conference Toronto B. Where commuting would be impossible or would involve a substantial increase in travel time, the work is unlikely to be comparable especially for an employee that does not have a driver’s license. o C. Including time of the day and the length of the working day. D. Any shift or weekend work. o E. Quality of Working Environment: A complete review of the quality of working environment including: o office v. warehouse; o store v. factory; o degree of luxury; o overall atmosphere; o privacy v. group surroundings; and o comfortable v. uncomfortable conditions. o Degree of Responsibility: F. ©Davis LLP, 2013 Hours of Work: A complete review of the degree of responsibility including: o Degree of independence and supervision; o Degree of initiative required; o Decision making authority; o Amount of clerical or secretarial functions; and 2013 Employment & Labour Conference Toronto o Job satisfaction. o Job Security and Possibility of Advancement: G. A complete review of the likelihood of job security and advancement including: o the likelihood of the job continuing to exist; o the opportunity to progress from that job to a higher position; o the relationship of training and education of employee to the position; and o whether there will be the development of proper skills for advancement in each position. o H. Prestige and Perquisites: If relevant, whether the employee has their own office, name and title on organization chart, personal or position profile, business card, expense account, signing authority, social privileges, etc. The importance and weight given to each of the foregoing factors will depend on the particular facts in each situation. This is illustrated best by the example of Christina. Christina was employed by Company ABC in the position of Executive Director. In that position, she was a senior-level employee, who enjoyed an expense account, a corner office, the use of administrative staff, and was responsible for making many decisions regarding the direction of Company ABC. Following the expiration of her leave of absence, the position of Executive Director no longer existed and Company ABC placed her in a position which Company ABC claimed was a “comparable position” but which involved mainly clerical tasks. Christina incurred no loss in wages, benefits or seniority. Did Company ABC breach its reinstatement obligation? ©Davis LLP, 2013 2013 Employment & Labour Conference Toronto The answer is very likely yes. Christina’s new position involved a marked decrease in the degree of responsibility, prestige and perquisites as well as a loss in job security despite the fact that her compensation package remained the same. The right to reinstatement following the expiration of a protected leave of absence is not absolute. There is no obligation on the employer to create a comparable position in circumstances where the employee would otherwise have been terminated for reasons completely unrelated to the leave. The following reasons do not constitute sufficient reasons to establish that an employee would otherwise have been terminated for reasons completely unrelated to the leave: where it was discovered during the leave of absence that the employee was in fact dispensable; where it was discovered that the operation or organization runs more smoothly without the employee; where it was discovered that the employer’s temporary replacement performs more satisfactorily; and the fact that the reinstatement at the termination of the leave is at an inconvenient or difficult point in the employer’s cycle of operations. However, if the reason for failure to reinstate an employee would have resulted in a termination even if the employee had not gone on a leave of absence, there is no violation of the reinstatement obligation. This is the case where an employee’s employment is terminated for wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer. If, during an employee’s protected leave of absence, it comes to the attention of the employer that the employee’s conduct amounts to wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer, the employer may terminate an employee ©Davis LLP, 2013 2013 Employment & Labour Conference Toronto during the employee’s protected leave of absence. It is not necessary to reinstate the employee and then proceed to terminate their employment. An employer is also not required to comply with the reinstatement obligation where an employer undergoes a reorganization or downsizing and the employee’s employment would have been terminated regardless of the employee being on a leave of absence, provided that a comparable position does not exist. Take for example, Marta. As we know, Marta is employed by Company ABC as an administrative assistant. While on her pregnancy and parental leave of absence, Company ABC downsizes its operations and eliminates all of its administrative functions. Approximately thirty-three employees have their employment terminated as a result of the downsizing, including Marta. There is no comparable position for Marta. Has Company ABC breached its obligation to reinstate Marta? The answer is no. Where an employer undergoes a legitimate downsizing or restructuring of its business, there is no obligation to reinstate if the employee would have lost his or her job regardless of whether he or she had gone on leave, provided that there is no comparable position. In order for an employer to free itself from the reinstatement obligations, the reorganization or downsizing must be legitimate. It is more likely that an employer will be found not to have violated the reinstatement obligations where the reorganization or downsizing affects employees other than just the employee returning from the protected leave of absence and where there is evidence that the reorganization or downsizing was contemplated before the employee was expected to return from the protected leave of absence. An employer may still be susceptible to a claim for reprisal by an employee returning from a protected leave of absence if the employee asserts that his or her employment was terminated as a ©Davis LLP, 2013 2013 Employment & Labour Conference Toronto result of a downsizing or restructuring but that the employment of another employee, who was similarly situated to the employee returning from the protected leave of absence, was not. (ii) The Employee’s Rate of Pay Upon Reinstatement In most jurisdictions, employment standards legislation stipulates the rate of pay to which an employee is entitled upon reinstatement following the expiration of a leave of absence. In Ontario, an employer is required to pay a reinstated employee at a rate equal to the greater of the rate that the employee most recently earned with the employer or the rate that the employee would be earning had he or she worked throughout the leave of absence. Therefore, if an employee would otherwise have received an increase in wages but for the fact that the employee was on a protected leave of absence, the employee is entitled to that increase upon return to work. (iii) Protection From Reprisal The reinstatement obligation also protects against “sham reinstatement”. In other words, an employer is not able to “get around” the reinstatement obligations by reinstating an employee only to terminate their employment shortly thereafter for reasons that do not amount to wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer. In Ontario, there is no hard and fast rule about how long an employee needs to remain employed following the return to work from a protected leave of absence before an employer can “safely” terminate the employee’s employment. Further protections against “sham reinstatement” are offered under the reprisal provisions of most jurisdictions’ employment standards legislation. In general, the reprisal provisions prohibit employers from dismissing or otherwise penalizing an employee because an employee, among ©Davis LLP, 2013 2013 Employment & Labour Conference Toronto other things, takes a protected leave of absence. Dismissing or otherwise penalizing an employee can take many forms such as: refusing to provide an employee with a promotion; refusing to provide an employee with a wage increase; providing an employee with an unfavourable performance review; terminating an employee’s employment; disciplining an employee; providing an employee with a reduction of hours; providing an employee with a pay cut; or withholding opportunities for an employee to work overtime; because an employee decided to take a protected leave of absence. An employee does not need to demonstrate that an employer disciplined or otherwise penalized an employee for the sole reason that the employee exercised or intended to exercise their right to a protected leave of absence. Rather, the “taint theory” is often used so that an employee need only establish that the employee exercising their right or intending to exercise their right to a protected leave of absence was a consideration in the employer’s discipline or otherwise penalizing conduct. There are significant consequences to an employer should an employer commit a reprisal against an employee for exercising their right or intending to exercise their right to a protected leave of absence. An employment standards officer can order that an employee be reinstated if their employment was terminated and the employer is found to have committed a reprisal. The Ontario Ministry of Labour Employment Standards Program has made it clear that where an employer is ©Davis LLP, 2013 2013 Employment & Labour Conference Toronto found to have committed a reprisal against an employee, reinstatement should be the first remedy considered. Where an employer has committed a reprisal against an employee, an employee may also be entitled to compensation as damages for that reprisal. For instance, an employee may be entitled to compensation for direct earnings lost. Where an employee’s employment is terminated prior to the commencement of a protected leave of absence, the employee may be entitled to wages (including vacation pay) and any non-wage earnings the employee would have earned between the date of dismissal and the date that the employee’s leave of absence would have begun. With respect to an employee that is reinstated to his or her employment following an employer’s act of reprisal, the employee may also be entitled to pre-reinstatement compensation. An employee may be compensated for the earnings the employee would have earned between the date the employee’s employment was terminated and the date the employee was reinstated in employment. Lastly, an employee may also be entitled to compensation for: expenses incurred in seeking new employment, loss of the employee’s reasonable expectation of continued employment with the former employer, emotional pain and suffering, notice of termination and/or severance pay, and benefit plan entitlements. VII. MANAGING AN EMPLOYEE THROUGHOUT THE LEAVE OF ABSENCE Now that an employer’s obligations both during an employee’s protected leave of absence and following the conclusion of that leave of absence are clear, it is important to understand how to effectively manage the employee before, during and after the employee’s protected leave of absence. The following are helpful tips and suggestions for managing an employee throughout the protected leave of absence: 1. Clarify the Exact Dates of the Leave of Absence With the Employee ©Davis LLP, 2013 2013 Employment & Labour Conference Toronto Employers should obtain from the employee the exact dates when the employee intends to take their leave of absence. A prudent employer will confirm both the date that the employee commences the leave and the expected return to work date in writing. 2. Inform the Employee About Their Entitlement to Benefits During the Leave of Absence Employees should be advised that they are entitled to have their benefits under various Benefit Plans continued throughout the duration of the protected leave of absence. Employers should tell an employee that the employee will continue to be responsible for the employee’s share of the contributions to the Benefit Plans and that if the employee does not intend to continue their share of the contributions to the Benefit Plans, they must inform the employer in writing before they begin their leave of absence. The consequences of failing to do so should also be explained to the employee. 3. Inform the Employee About Their Vacation Entitlements During the Leave of Absence Employees should be advised of their entitlements to vacation time and vacation pay, if any, depending on how the employee earns vacation time and vacation pay. This will avoid future misunderstandings about the employee’s vacation entitlements. 4. Have the Temporary Employee Covering the Leave of Absence Sign an Offer of Employment Employers should have any temporary employee that is covering the leave of absence sign a fixed term offer of employment which clearly sets out the temporary employee’s entitlements upon termination of employment and provides for early termination of the employment contract. ©Davis LLP, 2013 2013 Employment & Labour Conference Toronto 5. Communicate With The Employee Regarding Their Expected Return to Work Date Employers should contact employees well in advance of their expected return to work date in order to determine (i) the employee’s intentions regarding their return to work and (ii) whether the employee intends to use any vacation time the employee may have earned during the leave of absence following the expiration of the leave of absence. By communicating with the employee regarding their return to work well in advance of the employee’s expected return to work date, the employer will be able to address any concerns the employee may have with their return to work date, including child care concerns. 6. Communicate With The Employee Regarding The Employee’s Intentions to Return to Work Employers should communicate with employees as necessary throughout the duration of the leave of absence, but especially before the employee’s expected return to work date as the employee may raise issues about their return to work including whether the employee wishes to return to work on a part-time basis or on reduced hours. 7. Communicate with the Employee Regarding Any Comparable Position In the event the employee’s original position no longer exists, communicate with the employee the terms and conditions of the comparable position. The analysis about whether the employee’s original position exists or, if not, whether there is a comparable position for the employee should be conducted shortly before the end of the employee’s leave of absence. ©Davis LLP, 2013 2013 Employment & Labour Conference Toronto SCHEDULE A Jurisdiction Pregnancy Leave of Absence Length of Leave Alberta British Columbia Manitoba New Brunswick Newfoundland Nova Scotia 15 weeks 17 weeks 17 weeks 17 weeks 17 weeks 17 weeks ©Davis LLP, 2013 Various Qualifications - Employed by Employer for at least 52 consecutive weeks - 6 weeks’ notice - Employed by Employer - 4 weeks’ notice - Employed by Employer or at least 7 consecutive months - 4 weeks’ notice - Employed by Employer - 4 months’ notice of intention to take leave of absence and 2 weeks’ notice of commencement of leave of absence - Employed for by Employer for at least 20 consecutive weeks - 2 weeks’ notice - Employed by Employer for at least 1 year - 4 weeks’ notice Parental Leave of Absence Length of Leave 37 weeks Various Qualifications - Employed by Employer for at least 52 consecutive weeks - 6 weeks’ notice 37 weeks - Employed by Employer 35 weeks if Pregnancy leave taken - 4 weeks’ notice 37 weeks - Employed by Employer for at least 7 consecutive months - 4 weeks’ notice 37 weeks - Employed by Employer 35 weeks if Pregnancy leave taken - 4 weeks’ notice 35 weeks - Employed by Employer for at least 20 consecutive weeks - 2 weeks’ notice 52 weeks - Employed by Employer for at least 1 year 35 weeks if Pregnancy leave taken - 4 weeks’ notice 2013 Employment & Labour Conference Toronto Jurisdiction Pregnancy Leave of Absence Length of Leave Ontario 17 weeks Prince Edward Island Quebec Saskatchewan North West Territories Nunavut Yukon Federal ©Davis LLP, 2013 17 weeks 18 weeks 18 weeks 17 weeks 17 weeks 17 weeks 17 weeks Parental Leave of Absence Various Qualifications Length of Leave - Employed by Employer for at least 13 weeks prior to estimated delivery date 37 weeks - Employed by Employer for at least 13 weeks 2 weeks’ notice 2 weeks’ notice 35 weeks if Pregnancy leave taken - - - Employed by Employer for 20 weeks of the 52 weeks prior to going on leave 35 weeks - Employed by Employer for 20 weeks of the 52 weeks prior to going on leave - 4 weeks’ notice 52 weeks for adopted child - 4 weeks’ notice - Employed by Employer 52 weeks - Employed by Employer - 3 weeks’ notice - 3 weeks’ notice - Employed by Employer for 20 weeks in the 52 week period before the leave begins - Employed by Employer for 20 weeks in the 52 week period before the leave begins - 4 weeks’ notice - 4 weeks’ notice - Employed by Employer for at least 12 months - Employed by Employer for at least 12 months - 4 weeks’ notice - 4 weeks’ notice - Employed by Employer for at least 12 months - Employed by Employer for at least 12 months - 4 weeks’ notice - 4 weeks’ notice - Employed by Employer for at least 12 months - Employed by Employer for at least 12 months - 4 weeks’ notice - 4 weeks’ notice - Employed by Employer for at least 6 months - Employed by Employer for at least 6 months - 4 weeks’ notice - 4 weeks’ notice 37 weeks 34 weeks if Pregnancy or adoption leave has been taken 37 weeks 37 weeks 37 weeks 37 weeks Various Qualifications 2013 Employment & Labour Conference Toronto SCHEDULE B Federal Jurisdiction: Sick Leave? o Compassionate Care Leave? o Yes! An employer shall not dismiss or lay off an employee solely because of absence due to illness or injury if (a) the employee has completed three consecutive months of continuous employment with the employer; (b) the period of absence does not exceed 12 weeks, and (c) the employee, if requested in writing by the employer within 15 days after returning to work, furnishes a doctor’s certificate confirming that the absence was legitimate. Yes! Up to eight unpaid weeks of compassionate care leave to care for or support a seriously ill family member. Family Responsibility/Emergency Leave? o No! Alberta Sick Leave? o Compassionate Care Leave? o No! No! Family Responsibility/Emergency Leave? o No! British Columbia Sick Leave? o Compassionate Care Leave? o No! Yes! Up to eight weeks of unpaid leave to provide care and support to a family member. Family Responsibility/Emergency Leave? Error! Unknown document property name. 2013 Employment & Labour Conference Toronto o Yes! Up to five days of unpaid leave during each employment year to meet responsibilities related to the care, health or education of a child in the employee’s care, or the care or health of any other member of the employee’s immediate family. Manitoba Sick Leave? o Compassionate Care Leave? o No! Yes! Employees who have been employed by the same employer for at least 30 calendar days can take up to eight weeks’ unpaid compassionate care leave in order to provide care or support for a terminally ill family member. Family Responsibility/Emergency Leave? o Yes! Employees who have been employed for at least 30 days will be entitled to three days of unpaid leave each year to deal with personal illness or for their responsibilities in relation to a family member. New Brunswick Sick Leave? o Compassionate Care Leave? o Yes! An employer must allow an employee who has been with the employer for more than 90 days up to five days’ unpaid leave of absence for sick leave every year, upon the request of the employee. Yes! Up to eight unpaid weeks of compassionate care leave to care for or support a seriously ill person with whom the employee has a close family relationship. Family Responsibility/Emergency Leave? o Yes! An employer must allow an employee up to three days’ unpaid leave of absence every year to meet responsibilities related to the health, care or education of a person in a close family relationship with the employee. Newfoundland and Labrador Sick Leave? o Yes! Upon completion of 30 days of continuous service with the same employer, an employee is entitled to a period of seven days’ unpaid sick leave or family responsibility leave in one year. Compassionate Care Leave? 2013 Employment & Labour Conference Toronto o Yes! Employees who have been employed by the same employer for at least 30 days can take a leave of absence of up to eight weeks in order to provide care or support to a family member of the employee. Family Responsibility/Emergency Leave? o No! Northwest Territories Sick Leave? o Compassionate Care Leave? o Yes! An employee who has been employed by the employer for at least 30 days is entitled to sick leave, without pay, for a period of at least five days during each 12 month period. Yes! Up to eight unpaid weeks of compassionate care leave to care for or support a seriously ill family member. Family Responsibility/Emergency Leave? o No! Nova Scotia Sick Leave? o Compassionate Care Leave? o Yes! An employee is entitled to a maximum of three days of unpaid sick leave each year. Yes! Employees who have been employed by the same employer for at least three months can take up to eight weeks unpaid compassionate care leave in order to provide care or support to a family member of the employee. Family Responsibility/Emergency Leave? o Yes! Employees are entitled to take an unpaid leave of absence during a natural disaster or public health risk in order to attend to their own needs or those of a family member. The emergency leave continues for as long as the emergency exists and the emergency prevents the employee from performing the employee’s work duties. Nunavut Sick leave? 2013 Employment & Labour Conference Toronto o Compassionate Care Leave? o No! Yes! Up to eight unpaid weeks of compassionate care leave to care for or support a seriously ill family member. Family Responsibility/Emergency Leave? o No! Ontario Sick Leave? o Compassionate Care Leave? o Covered under Family Responsibility/Emergency Leave. The ESA also provides for separate Organ Donor Leave (up to 13 weeks of unpaid leave). Yes! Eight weeks of unpaid family medical leave to employees who are required to provide care or support to critically ill family members. Family Responsibility/Emergency Leave? o Yes! 2 types of emergency leave: Emergency Leave: An employee who works for an employer who regularly employs at least 50 workers is entitled to up to 10 days unpaid leave each calendar year in the case of a personal illness, injury or medical emergency, and a death, illness, injury, medical emergency, or urgent matter concerning prescribed family members. Prince Edward Island Sick Leave? o Compassionate Care Leave? o Yes! An employee who has worked for his or her employer continuously for six months or longer may be granted up to three days of unpaid sick leave in a 12-month period. Yes! Up to eight unpaid weeks of compassionate care leave to care for or support a seriously ill member of the employee’s immediate family. Family Responsibility/Emergency Leave? o Yes! An employee may be absent from work without pay for up to three days during a 12-month period in order to meet responsibilities relating to the health or care of an immediate or extended family member. 2013 Employment & Labour Conference Toronto Quebec Sick Leave? o Compassionate Care Leave? o Yes! An employer is prohibited from dismissing, suspending, or transferring an employee on the ground that the employee was absent because of illness or accident for a period not exceeding 26 weeks in the preceding 12 months. This is covered under Family Care Leave. Family Responsibility/Emergency Leave? o Yes! The Labour Standards Act provides for a number of other leaves of absence collectively referred to as family or parental leave and absences. This includes paternity leave, adoption leave, parental leave, bereavement leave, special occasion leave and family care leave. Family care leave: Employees may be absent for up to 10 days per year, without pay, to fulfill obligations relating to the care, health or education of the employee’s child or the child of the employee’s spouse or because of the state of health of the employee’s spouse, father, mother, father’s or mother’s spouse, brother, sister or one of the employee’s grandparents. an employee may be absent without pay for a maximum of 12 weeks in a year where the employee is required to attend to the needs of his or her child, spouse, spouse’s child, father, mother, the spouse of his father or mother, brother, sister, or one of his or her grandparents who has a serious illness or has had a serious accident. An extension to up to 104 weeks will be allowed in the case of the serious and potential mortal illness of an employee’s child, or where the employee must stay with his or her minor child who has suffered a serious bodily injury during or resulting directly from a criminal offence, or if the employee’s spouse or child dies during or as a direct result of a criminal offence. An employee may also be absent for a period of not more than 52 weeks if the employee’s minor child has disappeared and is probably in danger, or where the employee’s spouse or child commits suicide or where the probable cause of death is suicide. Saskatchewan Sick Leave? o Yes! An employer may not dismiss, suspend, lay off, demote or discipline an employee because he or she was absent due to his or her own illness or injury, or the illness or injury of a dependent member of the employee’s immediate family. The employee must have been employed for at least 13 consecutive weeks prior to the 2013 Employment & Labour Conference Toronto absence, either the absence does not exceed 12 weeks in a period of 52 weeks for a serious illness or injury, or the absence does not exceed 12 days in a calendar year for a non-serious illness or injury, and where requested by the employer the employee must provide a medical certificate. Compassionate Care Leave? o This is covered under Sick Leave. Family Responsibility/Emergency Leave? o No! Yukon Sick Leave? o Compassionate Care Leave? o Yes! An employee is entitled to one day without pay for every month employed by that employer minus the number of days on which the employee has previously been absent due to illness or injury. An employee’s maximum net entitlement shall not exceed 12 days. Yes! Up to eight unpaid weeks of compassionate care leave to care for or support a seriously ill member of the employee’s family. Family Responsibility/Emergency Leave? o No!
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