Written on behalf of Peter McSherry
Ontario law, by statute, protects workers who are required to take time off work for personal family emergencies. Many workers have such responsibilities outside of their working duties and Ontario law offers protections to them.
Who is Protected?
Employees are allowed an unpaid leave up to 8 weeks total in a calendar year to provide care and support for a sick family member.
A “family member” is defined by the act to be:
- The spouse of the worker;
- The parent, step-parent or foster parent of the worker or of the worker’s spouse;
- The child, step-child or foster child of the employee or of the spouse of the employee;
- The spouse of the child of the worker;
- The worker’s brother or sister;
- A relative of the employee who is dependant on the employee for care or assistance;
What is Required
A medical practitioner must provide a statement in writing stating the person requiring the care has a serious medical condition. This condition may be chronic or episodic, that is, it occurs from time to time.
What the Employee Must Do
The worker must advise the company in writing of the need to take this “family caregiver leave” and provide a copy of the medical statement if requested. The employee should be aware that the company may treat any partial week of leave as a full week. The worker should be mindful of this when selecting the commencement date of the leave.
Violation & Remedies
Should the employer act in retaliation to this request by any form of discipline, such as termination or threats, the worker has a remedy to file a complaint under the Employment Standards Act similar to the remedy available to a woman fired while on pregnancy leave. In the case of a termination, this could lead to reinstatement and recovery of all lost wages to the date of the hearing.
In addition, the worker would have a common law claim for termination based on wrongful dismissal notice requirements and also a likely claim for aggravated damages based on unfair conduct at the time of termination. Awards of aggravated damages for conduct contrary to the duty of good faith have been very significant recently.
Human Rights Issues
Many companies offer more generous leave policies to their employees. If such leave terms are not offered to all employees, the company may well be in violation of human rights obligations where the distinction is based on gender, age, race or other protected values. For example, if the leave policy is allowed only to men in senior management, then a human rights remedy is likely available.
Understand Your Rights
Knowledge of your legal rights is an important first step. It is tragic enough to deal with an ailing family member without having to consider that this action may jeopardize the security of your employment. You do have rights, and it is important to understand them.
Get advice before you act. Contact the offices of Guelph employment lawyer Peter McSherry. We can help you determine whether you may have a claim due to a human rights violation and how to deal with it. Contact us online or by phone at 519-821-5465 to schedule a consultation.