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. The medical condition and risk of death must be confirmed in a certificate issued by a qualified health practitioner.
All employees, whether full-time, part-time, permanent, or term contract, who are covered by the Employment Standards Act, 2000 (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 specified family members do not have to live in Ontario in order for the employee to be eligible for family medical leave.
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 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.
Family medical leave and personal emergency leave are two different types of leave. Personal emergency leave is unpaid, job-protected leave of up to 10 days each calendar year. Personal emergency leave may be taken in the case of personal illness, injury or medical emergency and the death, illness, injury, medical emergency of, or urgent matter relating to, certain family members, including dependent relatives.
Family medical leave, on the other hand, is unpaid, job-protected leave of up to eight (8) weeks in a 26 week period. Family medical leave is 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 stating that this family member has a serious illness with a significant risk of death occurring within a period of 26 weeks.
Further, while only employees who work for employers that regularly employ at least 50 employees are entitled to personal emergency leave, this is not a requirement for family medical leave.
The list of persons for whom a family medical leave may be taken is not identical to the list of persons specified for personal emergency leave.
An employee may be entitled to both leaves. They are separate leaves and the right to each leave is independent of any right an employee may have to the other leave. An employee who qualifies for both leaves would have full entitlement to each 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.
Felicia begins a family medical leave on Wednesday, May 21. First week of leave is defined as beginning on the preceding Sunday, May 18 and will end on Saturday, May 24. Felicia will be considered to have used one full week of the 8 weeks of family medical leave as of Saturday, May 24.
Connie takes two days off work for family medical leave on Monday, July 19 and Tuesday, July 20. The week of family medical leave is defined as beginning on the preceding Sunday (July 18) and will end on Saturday, July 24. Although Connie chose to return to work on Wednesday, July 21 (and be paid her regular wages for that work) she will be deemed to have used one full week of the 8 weeks of family medical leave as of Saturday, July 24.
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 specific family member. For example, if one spouse took six weeks of family medical leave to care for his or her 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.
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.
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.
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.
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.
On Wednesday, June 13, a medical 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.
The latest day an employee can remain on leave is:
whichever is earlier.
Based on the definition of "week" for family medical leave, the leave would always end on a Saturday.
The employee does not have to have the medical certificate before he or she can take the leave. An employee might commence the leave before obtaining the medical certificate. The right to the leave is dependent upon the issuance of the medical certificate and the leave must be completed within the 26-week period specified in that certificate. If the employee could not subsequently produce a copy of the certificate and/or purported to take leave beyond the 26-week period, the employee would not be entitled to any of the protections afforded to employees on such a 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 state that the family member has a serious medical condition with a significant risk of death occurring within a specified 26-week period.
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 Human Resources and Skills Development Canada may also be used 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.
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.
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.
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.