The Non-Working Worker: A Practical Guide for Dealing with Employee Absences

When They’re Not at Work: Managing Employees on Leave

00 Month 2013

Dentons Canada LLP Document reference #

Overview of Leaves

00 Month 2013 Dentons Canada LLP Document reference # 2

• Protected leaves under the Employment Standards Act are unpaid • Employees may be eligible for other compensation during leaves (e.g. EI)

• ESA leaves are statutory entitlements; employer has no discretion as to whether or not to grant the leave; no minimum period of employment required

• Pregnancy Leave • Parental Leave • Family Responsibility Leave • Compassionate Care Leave • Reservists’ Leave • Bereavement Leave • Jury Duty

Statutory (Employment Standards Act)

Employment Standards Act


• Commencing: between 11 weeks before due date, and actual birth date

• Ending: between 6-17 weeks after actual birth date (unless the employee requests a shorter period)

• Duration: up to 17 consecutive weeks • The employee is entitled to schedule the dates of her leave

Pregnancy Leave

Date of Birth

11 weeks prior 6 weeks after 17 weeks after



• Pregnancy Leave requests: • must be in writing • must be given to the employer at least 4 weeks before day of proposed leave

• Additional leave: • If, for reasons related to the birth or the termination of the pregnancy, the

employee is unable to return to work, she is entitled to an additional 6 weeks of leave.

• Employers may require a medical certificate to support the leave or state the reasons for requesting the additional 6 weeks of leave

Pregnancy Leave



• Birth mother who takes pregnancy leave: • Up to 35 consecutive weeks of leave beginning immediately after the end of

the pregnancy leave (unless otherwise agreed between the employee and employer) • Combined effect: total leave = 52 weeks

• Birth father / adopting parent / birth mother who does not take pregnancy leave: • Up to 37 consecutive weeks of leave beginning within one year of the child’s

birth or placement with adoptive parents

• Additional leave: • up to 5 consecutive weeks if the child has a physical, psychological or

emotional condition requiring an additional period of parental care

Parental Leave



• Up to 5 days per year

• Purpose: 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

• No explicit requirement for employees to provide notice or request this type of leave in writing.

• Although employers have no discretion to refuse to grant ESA leaves, if the employee fails to provide sufficient particulars for the employer to determine that the employee is entitled to Family Responsibility Leave, the employer may refuse.

• Employee must disclose: identify of the person; relationship; and that the absence is for the care or health of a family member or the care, health or education of a child. The exact nature of a health-related concern is not required. [Re Phillips (8 August 20000), BCEST #D307/00 (Love)]

Family Responsibility Leave



• Up to 3 days of leave on the death of a member of the employee’s immediate family

• No requirement that the 3 days be consecutive

Bereavement Leave



• “Immediate family” means: a) the spouse, child, parent, guardian, sibling, grandchild, or grandparent of an

employee b) any person who lives with the employee as a member of the employee’s

family

“Immediate Family” defined



• Up to 8 weeks within a 26 week period (taken in units of at least 1 week)

• Purpose: to provide care or support to a family member who has a serious medical condition with a significant risk of death within 26 weeks (medical practitioner to issue a certificate in support)

• 26 week period starts when the certificate is issued, or if the employee went on leave before he/she was able to obtain a certificate, on that date

• Ends on the last day of the week in which the earlier of the following occurs: • the family member dies • the 26 week period expires

• Extension: if the family member does not die within the 26-week period, the employee may take a further leave by obtaining a new certificate

Compassionate Care Leave



• “Family member” means: a) a member of the employee’s immediate family, and b) any other individual who is a member of a prescribed class: • Compassionate Care Leave Regulation, BC Reg 281/2006 s 2

• Extensive list of classes of individuals considered to be a “family member” • Includes step-siblings, foster parent/child relationships, aunts/uncles, nieces/nephews, etc. • Catch-all provision: “whether or not related by blood, adoption, marriage or common law partnership, an

individual…who considers the employee to be, like a close relative”

“Family Member” defined



• An employee who is a reservist and who requests Reservists’ Leave is entitled to a leave in relation to: • deployment to a Canadian Forces operation outside Canada, or engagement in

pre-deployment or post-deployment activity required by the Canadian Forces in connection with such an operation;

• deployment to a Canadian Forces operation inside Canada that is or will be providing assistance in dealing with an emergency or with its aftermath; or

• prescribed circumstances (e.g. support for the 2010 Olympics)

• Duration: as long as the deployment applies to the employee

Reservists’ Leave



• Requests must: • be in writing; • be given to the employer at least 4 weeks before leave is to begin, or as soon

as practicable after the employee receives the notice; • include the proposed date for the leave to begin and the proposed date of

return.

• If circumstances require the leave to be extended, the employee must provide notice following similar guidelines as for the original request

• If an employee proposes to return to work earlier than the anticipated date of return, he/she must provide notice at least one week before

Reservists’ Leave



• If required by the employer, the employee must provide information reasonable in the circumstances to explain why the employee is entitled to Reservists’ Leave

Reservists’ Leave



• If an employee is required to attend court as a juror, the employee is treated in the same manner as if that employee was on leave under Part 6 of the Employment Standards Act

• This section does not set out duration, notice, extensions, etc.

Jury Duty

Statutory (ESA) Leaves


• Must not, because of an ESA leave or an employee’s pregnancy: • terminate employment • change a condition of employment without employee’s written consent

(s. 54(2))

• “condition of employment” = all matters and circumstances that in any way affect the employment relationship of employers and employees

• Changes/terminations acceptable if unrelated to the absence and would have occurred even if the employee had been at work (Note: the onus is on the employer to prove this) ***Human Rights Code is also important***

Duties of Employer



Q: What if an employer discovers that an employee on leave is no longer needed, or his/her position has been changed or eliminated for legitimate business reasons?

• True Redundancy employer must be able to establish that the termination would have occurred regardless of the leave.

• If an employer only realizes that a position is unnecessary because the company was able to function without the employee on leave, termination would be a breach of the ESA

• Even if the leave or pregnancy is just one of many reasons for the change/termination, it is still a breach of the ESA

• If terminating an employee on leave due to redundancy, a generous severance package may be offered in exchange for a release

Duties of Employer - Redundancy



Q: What if an employer likes a replacement employee better, or just feels that the workplace is better without the employee on leave?

Duties of Employer - Redundancy



• If an employee needs to be terminated for true redundancy, the employer should provide the employee with notice of termination even though he/she is on leave

• Note that “working notice” of termination is not an option

• Time on leave cannot count as towards a notice period: • ESA s. 67(1)(a): A notice given to an employee under this Part [termination of

employment] has no effect if (a) the notice period coincides with a period during which the employee is on annual vacation, leave, temporary layoff, strike or lockout or is unavailable to work due to a strike or lockout or medical reasons…

• Employer must provide pay in lieu of working notice

Notice of Termination while on leave



• Must, as soon as the leave ends: • place the employee to the same position held before the leave, or in a

comparable position (s. 54(3))

Duties of Employer



• When determining a “comparable position”, the conditions of employment which are considered include, but are not limited to, the following:

• job title • job duties • reporting relationships • status as perceived by other staff and the public • pay package • benefit plans • hours of work • location of work • location of office, desk • provision of equipment and tools

• Employees have no duty to mitigate by accepting employment on terms that breach s. 54

“Comparable Position”



• The services of an employee on leave or jury duty are deemed to be continuous for the purposes of: • Vacation entitlement • Length of service (for calculating statutory minimum notice of termination) • Pension, medical or other benefit plans

• The employee is entitled to all increases in wages and benefits the employee would have been entitled to had the leave (or jury duty) not been taken

Employment deemed continuous during leave



• Employers must continue to make payments to pension, medical or other benefit plans as though the employee was not on leave (or on jury duty) • If the employer normally pays the full cost, then it continues to pay the full

cost

• If the employee normally pays a portion of the plan, then the employer must continue to pay its share if the employee chooses to continue to pay his or her share of the cost while on leave

• If the employee chooses not to continue to pay his/her portion, the employer is not required to maintain coverage during the leave, but must reinstate coverage without any waiting period upon the employee’s return to work

• Note: this requirement does not apply for Reservists’ Leave

Payment of benefit premiums during leaves



• If an employer contravenes the ESA, the Director of Employment Standards may order, among other things: • compliance with the ESA • the posting of a notice of the determination, with information about the ESA • payment of wages to an employee

AND • reinstatement with payment of lost wages • compensation instead of reinstatement • payment of reasonable and actual out of pocket expenses incurred because of

the contravention

AND • a monetary penalty

Consequences of breaching ESA leave provisions



• If vacation entitlement is based on paid weeks of vacation (most employers): • Vacation time and pay remains the same

• If vacation pay is based on a percentage of earnings: • Vacation time entitlement remains the same • Vacation pay reflects the reduced earnings, based on actual wages earned in

the vacation year

• Employers that provide vacation time/pay in excess of ESA minimums may not reduce such vacation time/pay because the employee is on leave or jury duty

Vacation entitlement while on leave



• Employees must have worked or earned wages for 15 of the 30 calendar days preceding a statutory holiday to be eligible for statutory holiday pay

• Employees on leave/jury duty usually not entitled to statutory holiday pay • Exceptions:

• Where employee went on leave after working or earning wages for 15 of the 30 calendar days preceding the statutory holiday

• Where the contract of employment provides otherwise

Holidays while on leave

Human Rights Code and leaves


• The Human Rights Code overlays the ESA

• Even if an employee is not strictly entitled to leave under the ESA, the Human Rights Code may nevertheless require that the leave be granted

• Relevant protected grounds: physical and mental disability, family status, sex

• Employer has a duty to accommodate

Employment Insurance and leaves


• Employees on leave may apply for Employment Insurance (EI) benefits

• 2-week waiting period

• Disconnect between parental leave and EI parental benefits: • ESA parental leave must start (but not necessarily end) within 52 weeks of

birth; EI parental benefits end 52 weeks after birth

• Effective June 9, 2013: Special EI benefits for Parents of Critically Ill Children

Discretionary Leaves


• Disability leaves

• Sick leave

• Personal leaves

• Sabbaticals

• ESA job protection not applicable

• But, still must not contravene the Human Rights Code • No terminations unless unrelated to the disability – i.e. restructuring, shutdown,

etc. where other employees of the same class are similarly terminated • Possible that employment becomes frustrated after significant period of time

(e.g. 7-8 years)

• Continuation of benefits similar as for statutory leaves

Contractual/Gratuitous Leaves

Best Practices


• Confirm dates of leaves of absences

• Discuss continuation of benefits with employee

• Refer employees to Service Canada regarding EI benefits – advise that for some leaves (e.g. parental, compassionate care), EI entitlement is split between partners or only given to one

• Check-in with employees regarding expected return to work date

• Consider employees on leave for promotions

• Do not rely on plain wording of the ESA to determine whether or not to grant a leave – Human Rights Code

Questions?


Law

The Non-Working Worker: A Practical Guide for Dealing with Employee Absences