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Family Medical Leave

  • Revised: November 21, 2014
  • Content last reviewed: November 2014

This guide is provided for your information and convenience only. It is not a legal document. For complete information, refer to the Employment Standards Act, 2000 and its regulations.

Family medical leave is unpaid, job-protected leave of up to eight weeks in a 26-week period.

Family medical leave may be taken to provide care or support to certain family members and people who consider the employee to be like a family member in respect of whom a qualified health practitioner has issued a certificate indicating that he or she has a serious medical condition with a significant risk of death occurring within a period of 26 weeks. Family caregiver leave is another job-protected leave available under the Employment Standards Act, 2000 (ESA)for employees with certain relatives who have a serious medical condition. One of the main differences between family medical leave and family caregiver leave is that an employee may be eligible for family caregiver leave even if the family member who has a serious medical condition does not have a significant risk of death occurring within a period of 26 weeks.

Eligibility

All employees, whether full-time, part-time, permanent, or term contract, who are covered by the ESA are entitled to family medical leave.

There is no requirement that an employee be employed for a particular length of time, or that the employer employ a specified number of employees in order for the employee to qualify for family medical leave.

Care or support includes, but is not limited to: providing psychological or emotional support; arranging for care by a third party provider; or directly providing or participating in the care of the family member.

The specified family members for whom a family medical leave may be taken are:

  • the employee's spouse (including same-sex spouse)
  • a parent, step-parent or foster parent of the employee or the employee's spouse
  • a child, step-child or foster child of the employee or the employee's spouse
  • a brother, step-brother, sister, or step-sister of the employee
  • a grandparent or step-grandparent of the employee or of the employee's spouse
  • a grandchild or step-grandchild of the employee or of the employee's spouse
  • a brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee
  • a son-in-law or daughter-in-law of the employee or of the employee's spouse
  • an uncle or aunt of the employee or of the employee's spouse
  • a nephew or niece of the employee or of the employee's spouse
  • the spouse of the employee's grandchild, uncle, aunt, nephew or niece
  • family medical leave may also be taken for a person who considers the employee to be like a family member. Employees wishing to take a family medical leave for a person in this category must provide their employer, if requested, with a completed copy of the Compassionate Care Benefits Attestation form, available from Employment and Social Development Canada, whether or not they are making an application for EI Compassionate Care Benefits or are required to complete the form to obtain such benefits.

The specified family members do not have to live in Ontario in order for the employee to be eligible for family medical leave.

Employment Insurance Benefits

Under the federal Employment Insurance Act, six weeks of employment insurance benefits (called "compassionate care benefits") may be paid to EI eligible employees who have to be away from work temporarily to provide care to a family member who has a serious medical condition with a significant risk of death within 26 weeks and who requires care or support from one or more family members. For information about EI visit Service Canada’s website, or contact Service Canada’s Employment Insurance Automated Telephone Information Service at 1-800-206-7218.

The right to take time off work under the family medical leave provisions of the ESA is not the same as the right to the payment of compassionate care benefits under the federal Employment Insurance Act. An employee may be entitled to family medical leave whether or not he or she has applied for or is qualified for the compassionate care benefits.

Interaction Between Family Medical Leave and Personal Emergency Leave, Family Caregiver Leave, Critically Ill Child Care Leave, and Crime-related Child Death or Disappearance Leave

Family medical leave, personal emergency leave, family caregiver leave, critically ill child care leave, and crime-related child death or disappearance leave are different types of leaves. For example, the purposes of the leaves, their length, the individuals with respect to whom they can be taken, and eligibility criteria are different.

See the respective chapters of this Guide for more information on each leave.

An employee may be entitled to more than one leave for the same event. Each leave is separate and the right to each leave is independent of any right an employee may have to the other leave(s).

Length of Family Medical Leave

A family medical leave can last up to eight weeks within a specified 26-week period.

The eight weeks of a family medical leave do not have to be taken consecutively. An employee may therefore take a single week of leave at a time. However, if an employee only takes part of a week off work as family medical leave, it is still counted as a full week of leave.

That is because "week" is defined for family medical leave purposes as a period of seven consecutive days beginning on a Sunday and ending on a Saturday. Week is defined in this way to correspond with the beginning and end of the week set for EI entitlement purposes.

Where an Employee Provides Care or Support for Only Part of a Week

Employees will not always need or want to take an entire week off to provide care or support to the individual.

In any week (which is defined as running from Sunday to Saturday), an employee’s right to take family medical leave only begins on the first day the employee is providing care or support.

If the employee stops providing care or support before the end of that week, the employee is entitled to be on leave until the end of the week, and he or she can return to work only if the employer agrees.* (The agreement does not have to be in writing.)

Even if an employee only takes part of a week off work as family medical leave, it is still counted as one week of the eight-week entitlement.

Note: prior to the amendments to the ESA that came into force on October 29, 2014, employees had the right to be on family medical leave only on days on which they provided care or support, and employers could not prevent an employee from returning to work during a week in which leave was taken.

Example

Felicia works weekdays. She provides care or support to her dying mother on Wednesday and takes family medical leave to do it. The first day of the week that she is entitled to be on family medical leave is Wednesday. She is also entitled to be on family medical leave on Thursday and Friday even though she is not providing care or support on those days. She is able to return to work on Thursday and Friday only if she wants to and her employer agrees to let her. Felicia is considered to have used up one of her eight weeks of family medical leave even though she was on leave for only part of the week.

Sharing Family Medical Leave

The eight weeks of family medical leave must be shared by all employees in Ontario who take a family medical leave under the ESA to provide care or support to a specified family member. For example, if one spouse took six weeks of family medical leave to care for his or her dying child, the other spouse would be able to take only two weeks of family medical leave. The spouses could take leave at the same time, or at different times.

Taking More Than Eight Weeks of Family Medical Leave

If an employee has taken a family medical leave to care for a family member who has not passed away within the 26-week period referred to in the medical certificate, and a health practitioner issues another certificate stating that the family member has a serious medical condition with a significant risk of death within 26 weeks, the employee would be entitled to an additional eight-weeks of family medical leave.

As long as a health practitioner continues to issue additional certificates, an employee will be entitled to additional leaves with respect to the same family member.

Whether or not this employee would be eligible for any or further EI benefits would be a matter to be determined by the federal Employment Insurance Commission.

Family Medical Leave for Additional Family Members

If an employee has more than one specified family member who has a serious illness with a significant risk of death within a period of 26 weeks, the employee will be entitled to an eight-week family medical leave for each of the specified family members.

Timing of Family Medical Leave

If a qualified health practitioner issues a certificate stating that a specified family member has a serious medical condition and there is significant risk of death occurring within a period of 26 weeks, an employee must take the family medical leave within that 26-week period.

Where two or more certificates are obtained by two or more employees wishing to take leave with respect to the same family member, the 26-week period within which the family medical leave must be taken is determined by whichever certificate was issued first.

Earliest Date a Family Medical Leave Can Begin

The earliest an employee may start the leave is the first day of the week in which the 26-week period identified on the medical certificate begins.

"Week" is defined for the purposes of family medical leave as a period of seven consecutive days, beginning on a Sunday and ending on a Saturday. If the date indicated on the certificate is a day other than a Sunday, the 26 week period will run from the preceding Sunday. Likewise, regardless of what day of the week the employee actually begins the leave, the week of family medical leave would be considered to have begun on the preceding Sunday.

Example:

On Wednesday, June 13, a qualified health practitioner issues a certificate stating that Mohammed's spouse has a serious medical condition with a significant risk of death within a period of 26 weeks. Because a week is defined as a period of 7 consecutive days beginning on Sunday and ending on Saturday under the family medical leave provisions, the 26-week period is considered to begin Sunday June 10. Assuming Mohammed wished to commence the leave on the day the certificate was issued, the first week of the leave would be considered to have begun on Sunday June 10.

Last Date of a Family Medical Leave

The latest day an employee can remain on leave is:

  • the last day of the week in which the family member dies,
  • the last day of the week in which the 26-week period expires
  • the last day of the eight weeks of family medical leave,

whichever is earlier.

Based on the definition of “week” for family medical leave, the last day an employee can be on leave will always be a Saturday.

Medical Certificate

The employee does not have to have the medical certificate before he or she can start the leave, but a certificate must eventually be obtained. If a certificate is never issued, the employee will not be entitled to the leave. This means that the employee would not be entitled to any of the protections afforded to employees on family medical leave.

An employer is entitled to ask an employee for a copy of the certificate of the qualified health practitioner to provide proof that he or she is eligible for a family medical leave. The employee is required to provide the copy as soon as possible after the employer requests it. The certificate must name the family member and state that the family member has a serious medical condition with a significant risk of death occurring within a specified 26-week period. There is no requirement that the notice specify what the medical condition is; it need only state that it is serious and that there is a significant risk of death occurring within a 26-week period.

The employee may wish to use the Ministry’s “Medical Certificate to Support Entitlement to Family Caregiver Leave, Family Medical Leave, and/or Critically Ill Child Care LeavePDF [197 Kb] form when obtaining the medical certificate.

The employee is responsible for obtaining and paying the costs (if any) of obtaining the certificate. The Ministry of Labour cannot assist the employee in obtaining the certificate.

If an employee is applying for Employment Insurance (EI) compassionate care benefits, a copy of the medical certificate submitted to Employment and Social Development Canada may also be used for the purposes of supporting an entitlement to family medical leave.

Qualified Health Practitioner

For the purposes of family medical leave, a qualified health practitioner is a person who is qualified to practice medicine under the laws of the jurisdiction in which care or treatment of the family member is being provided.

In Ontario, only medical doctors can issue a certificate. Different types of health practitioners may be able to issue certificates in different jurisdictions - it will depend on the laws of that jurisdiction.

Notice Requirements

An employee must inform the employer in writing that he or she will be taking a family medical leave of absence.

If an employee has to begin a family medical leave before notifying the employer, he or she must inform the employer in writing as soon as possible after starting the leave.

If the employee does not take the eight-week leave all at once, the employee is required to provide notice to the employer each time the employee begins a new part of the leave.

For example

Boris is going to take four weeks of leave from July 1 to July 28, and another four weeks from September 1 to September 28. Boris is required to provide written notice to his employer of both periods of leave. He can do this by providing a single written notice that sets out the start dates of both periods of leave, or he can provide two separate notices, at the same or different times.

An employee who does not give notice does not lose his or her right to a family medical leave.

While an employee is required to tell the employer in advance that he or she is taking a leave (or, if this is not possible, as soon as possible after starting the leave), the employee will not lose the right to take family medical leave if the employee fails to do so. An employer may discipline an employee who does not properly inform the employer, but only if the reason for the discipline is the failure to properly notify the employer and not in any way because the employee took the leave.

Rights During and at the End of a Family Medical Leave

Employers do not have to pay wages when an employee is on family medical leave.

Employees who take family medical leave are entitled to the same rights as employees who take pregnancy or parental leave. For example, An employer cannot threaten, fire or penalize in any other way an employee for taking, planning on taking, being eligible or being in a position to become eligible to take a family medical leave. See "Rights During Pregnancy and Parental Leaves" in the Pregnancy and Parental Leave chapter.

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