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Questions about Domestic or Sexual Violence Leave

On this page:

  1. What exactly does this provision do?
  2. Why is this significant?
  3. How is the new provision different from the existing provisions in the Employment Standards Act, 2000?
  4. When is an employee eligible to take domestic or sexual violence leave?
  5. What are the purposes for which an employee can take domestic or sexual violence leave?
  6. What is the definition of “child” for the purposes of domestic or sexual violence leave?
  7. How much domestic or sexual violence leave can an employee take?
  8. Can the employer count a part day of leave or a part week of leave as a full day or week?
  9. Does the employee need to give notice to the employer if they want to take a leave?
  10. When does an employee get domestic or sexual violence leave pay?
  11. Are employees entitled to be paid for an entire day of domestic or sexual violence leave when they took only part of a day as domestic or sexual violence leave?
  12. How is domestic or sexual violence leave pay calculated?
  13. What does “the wages the employee would have earned if they had not taken the leave” mean?
  14. What are the rules for employees paid by commission, or an hourly rate plus commission, or by piecework?
  15. If an employee was working overtime or was scheduled to work overtime when they took the leave, is domestic or sexual violence leave pay based on the overtime rate?
  16. If an employee was entitled to a shift premium at the time they took the leave, would that be included in domestic or sexual violence leave pay?
  17. If an employee is working on a public holiday and they take domestic or sexual violence leave, do they get the premium pay they would have been entitled to if they actually worked?
  18. Can an employer ask for proof that an employee is allowed to take the leave?

What exactly does this provision do?

The new domestic or sexual violence leave allows an employee to take a job-protected leave of absence from work if the employee or the employee’s child experience or are threatened with domestic or sexual violence and the employee takes the leave for specific reasons related to the violence.

Employees who have worked for the employer for at least 13 weeks prior to taking the leave may take up to 10 days and up to 15 weeks of leave within a calendar year. The first five days of leave taken within the calendar year are paid, the remainder of the leave is unpaid.

Why is this significant?

This provision will enable employees who are dealing with or fleeing from domestic or sexual violence against themselves or their children to take job-protected and partially paid leave to do so.

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

Previously, an employee might have been able to use personal emergency leave to deal with a similar situation, but the leave was limited to 10 unpaid, job-protected days of leave within a calendar year.In addition, the employee would have been required to work for an employer that regularly employed at least 50 employees to be eligible.

When is an employee eligible to take domestic or sexual violence leave?

An employee is eligible to take domestic or sexual violence leave if:

  • the employee has been employed by the employer for at least 13 weeks before taking the leave
  • the employee or the employee’s child has experienced or been threatened with domestic or sexual violence
  • the employee needs to take the leave for specific, limited purposes

What are the purposes for which an employee can take domestic or sexual violence leave?

An employee can take domestic or sexual violence leave to do the following things, either on their own behalf or if their child has experienced or been threatened with domestic or sexual violence:

  • to seek medical treatment for an injury or disability caused by the violence
  • to access services from a victim services organization
  • to seek professional counselling (therapeutic or otherwise) related to the violence
  • to move, permanently or temporarilyor
  • to seek law enforcement assistance, which can include making a police report or participating in criminal or civil legal proceedings resulting from the violence

domestic or sexual violence leave may only be taken for one or more of these purposes. If an employee wishes to take a leave for a different purpose, he or she may be eligible to take another leave under the ESA (critical illness leave or personal emergency leave, for example).

What is the definition of “child” for the purposes of domestic or sexual violence leave?

A child means the employee’s child, and includes a foster child, a step-child or child under the legal guardianship of the employee.

How much domestic or sexual violence leave can an employee take?

An eligible employee may take up to 10 days and up to 15 weeks of leave in a calendar year. The employee may draw from either entitlement but is required to give notice to the employer (orally or in writing for the 10 day entitlement, in writing for the 15 week entitlement, see below). 

Can the employer count a part day of leave or a part week of leave as a full day or week?

Yes.

Does the employee need to give notice to the employer if they want to take a leave?

Yes. As with other Part XIV leaves, the employee must give notice to the employer if they intend to take or take the leave, or if this is not possible, notice must be given as soon as possible after the leave is started. However, failure to give notice will not disentitle the employee to domestic or sexual violence leave.

Notice that the employee will be taking leave from the 10-day entitlement may be given orally or in writing; however, notice that the employee will be taking leave from the 15-week entitlement must be in writing.

When does an employee get domestic or sexual violence leave pay?

Employees are entitled to receive domestic or sexual violence leave pay for the first five days of the calendar year that they took domestic or sexual violence leave. The employer cannot choose the days of domestic or sexual violence leave that will be paid. The rest of the domestic or sexual violence leave days or weeks an employee may take in a calendar year are unpaid.

Are employees entitled to be paid for an entire day of domestic or sexual violence leave when they took only part of a day as domestic or sexual violence leave?

Employees are entitled to receive domestic or sexual violence leave pay only for the hours that they didn’t work because they were taking the leave. If an employee normally works eight hours in a day and missed an entire day, the employee would be entitled to either eight hours or a day’s pay, depending on how they are paid.

If an employee missed three hours of work to take domestic or sexual violence leave, but worked five hours, the employee is entitled to three hours of domestic or sexual violence leave pay and regular pay for the other five hours.

Note that an employer may count a part-day of domestic or sexual violence leave as a full day for the purposes of the employee’s entitlement for the calendar year to the leave.

How is domestic or sexual violence leave pay calculated?

For the first five days of domestic or sexual violence leave taken within a calendar year, an employee is entitled to be paid what they would have earned had they been at work and not taken the leave.

If the employee is paid fully or partly by a performance-related method (like commission only, commission plus salary, commission plus hourly rate, or piece work) then they must be paid the greater of their hourly rate, if there is one, or the applicable minimum wage for the time at work they missed because they were on domestic or sexual violence leave.

If the employee missed part of a day to take the leave, the employee would be entitled to any wages they actually earned during the time they were at work in addition to domestic or sexual violence leave pay.

What does “the wages the employee would have earned if they had not taken the leave” mean?

For hourly rate employees, this is the number of hours the employee was on leave x the normal hourly rate.

For salaried employees, this would be either what an employee is paid for a day if the employee took an entire day of leave, or what the employee is paid for an hour of work. In effect, the employee’s salary is continued during the time the employee took paid domestic or sexual violence leave.

What are the rules for employees paid by commission, or an hourly rate plus commission, or by piecework?

If the employee has an hourly rate as part of their employment contract, the employee should be paid that hourly rate for every hour of work the employee missed because they took domestic or sexual violence leave.

If the employee has no hourly rate (for example, is paid by commission only, or piece work) then the employee must be paid the applicable minimum wage for all hours spent on domestic or sexual violence leave.

If an employee was working overtime or was scheduled to work overtime when they took the leave, is domestic or sexual violence leave pay based on the overtime rate?

No. If the employee was scheduled to work overtime and missed all or part of the working day, the employee is entitled to be paid the regular wages they would have earned during the day or shift, but not at the overtime rate of 1.5 x regular rate.

For example, if an employee is paid $16/hour and missed an entire eight-hour shift to take the leave, and all of those hours would have been in excess of the 44-hour overtime threshold, domestic or sexual violence leave pay for that employee would be “straight time” only, or 8 x $16. (not 8 x the overtime rate of $24.).

If an employee was entitled to a shift premium at the time they took the leave, would that be included in domestic or sexual violence leave pay?

No. If the employee was scheduled to work a shift that attracts a shift premium, the employee is entitled to be paid the regular wages they would have earned during the day or shift only.

For example, if an employee is paid $16./hour + $2.50/hour for night shifts and missed an entire eight hour night shift to take the leave, domestic or sexual violence leave pay for that employee would be 8 x $16. (not 8 x $18.50 – the regular rate + premium pay).

If an employee is working on a public holiday and they take domestic or sexual violence leave, do they get the premium pay they would have been entitled to if they actually worked?

In some circumstances, an employee may agree to work or be required to work on a public holiday. One of the possible outcomes of that arrangement is that the employee would be entitled to “premium pay” (1.5 x the employee’s regular rate) for all hours worked on the public holiday, plus public holiday pay, but the employee would not get a substitute day off at a later date.

If an employee in that situation does not work some or all of the hours they were supposed to on a public holiday because they took paid domestic or sexual violence leave, when calculating domestic or sexual violence leave pay the employee would not receive premium pay for the hours of domestic or sexual violence leave taken.

For example, if an employee was scheduled to work on a public holiday for public holiday pay and premium pay with no substitute day off, and worked none of the scheduled hours because he or she took domestic or sexual violence leave, the entitlement to domestic or sexual violence leave pay would $0 because domestic or sexual violence leave pay does not include premium pay. However, the employee would be entitled to public holiday pay as long as all the requirements for public holiday (e.g. working first and last, etc.) were fulfilled.

If an employee in the same situation worked some of the hours on the public holiday that he or she was scheduled to work, and took the rest of the shift off to take domestic or sexual violence leave, the employee would be entitled to premium pay for all the hours actually worked on the public holiday, $0 domestic or sexual violence leave pay, and public holiday pay if he or she qualified for it.

Can an employer ask for proof that an employee is allowed to take the leave?

Yes, but only if it is “reasonable in the circumstances” and in most cases, asking the employee to provide a note from a medical doctor, nurse or psychologist will not be reasonable because of the sensitivity of the subject matter. An employee can provide a medical note if they want to, and an employer can ask for other types of evidence such as a receipt for moving expenses if this type of evidence would be “reasonable in the circumstances.” 

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