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Questions about Critical Illness Leave

What exactly does this provision do?

Employees are entitled to take an unpaid, job-protected critical illness leave to care for either a critically ill minor child or an adult who is a family member.

Why is this significant?

The Fair Workplaces, Better Jobs Act broadens the class of family members that employees can take this leave to care for or support, and provides Part XIV leave general protections for employees who wish to use new federal Employment Insurance benefits for caregivers of critically ill relatives.

How is the new provision different from the existing provisions in the Employment Standards Act, 2000?

Previously, critically ill child care leave was only available to employees to care for their own minor child.

What are the eligibility requirements to take critical illness leave?

The employee must be continuously employed by the same employer for at least six months, and a certificate must be issued by a qualified health practitioner stating that a minor child or adult who is a family member of the employee has had a significant change to his or her baseline state of health and is at risk of death due to an illness or injury.

The certificate must name the family member, state that the individual requires care or support and specify the period during which care or support is needed. An employee can use the Ministry of Labour’s own “Medical certificate to support entitlement to family caregiver leave, family medical leave, and/or critical illness leave” form, but any certificate that contains all the required information is acceptable.

How much leave can an employee take to care for a critically ill minor child?

An employee can take up to 37 weeks to care for a critically ill minor child who is a family member.

How much leave can an employee take to care for a critically ill adult?

An employee can take up to 17 weeks to care for a critically ill adult who is a family member.

What is a “family member?”

A family member includes:

  • the employee’s 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 child who is under legal guardianship of the employee or the employee’s spouse
  • a brother, step-brother, sister or step-sister of the employee
  • a grandparent, step-grandparent, grandchild or step-grandchild of the employee or 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 the employee’s spouse
  • an uncle or aunt of the employee or the employee’s spouse
  • a nephew or niece of the employee or the employee’s spouse
  • the spouse of the employee’s grandchild, uncle, aunt, nephew or niece
  • a person who considers the employee to be like a family member

If an employee wants to take critical illness leave to care for someone “who considers the employee to be like a family member,” the employee must provide a copy of the attestation form used to support an application for Employment Insurance caregiver benefits if the employer requests it. The employee is not required to apply for Employment Insurance benefits in order to qualify for the leave.

What is a “minor child?”

A minor child means any person who has not yet reached 18 years of age.

What are the time limits on taking the leave?

The time limits for taking the leave are the same as those for the previous critically ill child care leave. Employees may take critical illness leave for the period stated on the certificate. For example, if the certificate states that a minor child who is a family member is critically ill and will require care for 15 weeks, the employee is entitled to take up to 15 weeks of critical illness leave.

If the certificate instead states that the child will require care for 52 weeks or longer, the employee is entitled to take up to 37 weeks of leave within the 52-week period that runs from the earlier of the first day of the week in which the certificate was issued, and the first day of the week in which the child or adult became critically ill.

What is a “week” for the purposes of critical illness leave?

“Week” has the same definition as for critically ill child care leave: a period of seven consecutive days, beginning on Sunday and ending on Saturday.

Can an employee extend the leave if the minor child or adult is still critically ill after the date in the certificate passes?

Yes, if a certificate is issued providing a different period in which care is required, and the employee has not used up all the weeks he or she is entitled to take as critical illness leave. The further weeks of leave must be taken within the 52-week period running from the earlier of the first day of the week in which the certificate was issued, and the first day of the week in which the child or adult became critically ill.

For example:

  • A certificate is issued on January 1 stating that an adult who is a family member is critically ill and will require care for 10 weeks.
  • If the ill adult is still critically ill after an employee has used 10 weeks of leave, and another certificate is issued stating that the adult remains critically ill and requires care for another 10 weeks, the employee is entitled to take a further seven weeks of critical illness leave. All 17 weeks of leave must be taken before December 31.

Can an employee take additional leaves if the minor child or adult continues to be critically ill?

Yes. If one or more certificates were issued, and the child or adult remains critically ill after the end of the 52-week period running from the earlier of the first day of the week in which the first certificate was issued and the first day of the week in which the child or adult became critically ill, the employee will be entitled to a new, additional leave if all the eligibility criteria are met.

What happens if the critically ill child or adult dies?

The employee has the right to remain on leave until the last day of the week in which the minor child or adult dies. However, note that the employee may have the right to take personal emergency leave (PEL) in relation to the death if the family member is a person for which the employee is entitled to take personal emergency leave.

If a minor child dies, the employee would no longer be entitled to take critical illness leave. However, depending on the employee’s relationship to the child, the employee may be eligible to take personal emergency leave, or up to 104 weeks of child death leave after January 1, 2018.

What happens if the minor child turns 18 while an employee is taking critical illness leave in relation to the child?

The employee is entitled to take up to 37 weeks of leave, even if the child turns 18 after a 37-week leave has begun. However, if the employee wishes to take an additional leave in relation to a child who is no longer a minor child, the employee must wait until the end of the 52-week period running from the earlier of the first day of the week in which the certificate for the minor child was issued, and the first day of the week in which the minor child became critically ill.

For example:

  • A certificate is issued on January 1, stating that a minor child who is a family member is critically ill and requires care or support for a period of 37 weeks.
  • The child turns 18 on March 1. The employee is still entitled to take that 37 weeks of leave, ending on September 16.
  • If the child is still critically ill and requires care or support after that date, the employee must wait until January 1 of the following year for a new certificate to be issued, supporting a new leave of up to 17 weeks (now for a critically ill adult).

Could an employee be eligible for more than one critical illness leave at the same time?

Yes. Every time the employee becomes eligible to take critical illness leave, the employee has the right to take them. If the employee has two different family members who become critically ill at the same time and the appropriate certificates are issued, the employee could take more than one critical illness leave. An employee could be entitled to both a 37-week and 17-week leave at the same time if one critically ill family member is a minor child and the other is an adult, or two 37-week leaves if both critically ill individuals are minor children who are family members.

Note that the former critically ill child care leave provisions had limits on how much leave could be taken when more than one child was critically ill as a result of the same incident or circumstances. Those provisions no longer apply to critical illness leave.

Has anything else changed?

No. The notice to the employer requirements, the definition of “qualified health practitioner,” the requirement to provide a copy of the certificate(s) to the employer if requested, and the requirement for employees to share the leave if it is being taken in relation to the same person, for example, remain the same.

As before, the weeks of leave are not required to be taken consecutively.

If an employee takes part of a week of leave, the employer may deem an entire week of leave to have been used.

What happens to employees who are already on critically ill child care leave?

If a certificate supporting an employee’s entitlement to critically ill child care leave (whether it was an initial or additional leave) was issued before December 3, 2017 then the previous rules apply to that employee. In practical terms, this means that the employee will continue the leave under the previous terms of critical illness leave, as all the same limitation periods apply.

Why have these changes been made?

On December 3, 2017, federal Employment Insurance (EI) caregiver benefits became available to employees if they are taking a leave of absence from work to care for a critically ill minor child or adult who is a family member. Previously, EI benefits were only available to parents of critically ill children.

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