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Questions about Family Medical Leave

What exactly does this provision do?

Employees will be entitled to take a job-protected leave of up to 28 weeks within a 52-week period to care for a family member who has a serious medical condition with a significant risk of death within 26 weeks. The certificate to support family medical leave must be issued by a qualified health practitioner, which now includes a nurse practitioner as well as a medical doctor.

Why is this significant?

The Fair Workplaces, Better Jobs Act lengthens the period of family medical leave that an employee can take, and provides Part XIV leave general protections for employees who wish to access new federal Employment Insurance (EI) compassionate care benefits. Employees will have the flexibility to request a medical certificate from a nurse practitioner or a medical doctor.

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

Previously, employees were entitled to take a family medical leave of up to eight weeks if they qualified; now, from January 1st, 2018, they can take a leave of up to 28 weeks. The certificate required to support the employee’s eligibility to take family medical leave could be issued only by a medical doctor.

Are there changes to the list of eligible family members that the employee can take family medical leave to care for?

No. However, the list of eligible family members previously contained in section 1(1) of O.Reg. 476/06  are now included in section 49.1(3):

  • 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 family medical leave to care for someone “who considers the employee to be like a family member,” the employee must provide a copy of the attestation used to support an application for EI benefits if the employer requests it. The employee is not required to apply for compassionate care EI benefits in order to qualify for the leave.

What are the time limits on taking the leave?

The earliest day the employee can begin the leave is the first day of the first week of the 26-week period referred to in the certificate. The leave must end either on the last day of the week within which the family member dies (if that occurs), or when the employee has used 28 weeks of leave within the 52-week period running from the first day of the first week of the 26-week period referred to in the certificate.

Does another certificate have to be issued if the family member has not died within the original 26-week period and remains seriously ill with a significant risk of death and the employee needs to extend the leave?

No. The employee may take up to 28 weeks of leave within the 52-week period running from the first day of the week in which the 26-week period began without getting a new certificate.

For example, a certificate is issued on January 1, indicating that a family member has a serious condition with a significant risk of death within 26 weeks.

The employee takes 10 weeks of leave starting on January 1 and ending on March 11. The employee takes another 10-week period of leave starting on April 2 and ending on June 10. The family member is still alive, but still seriously ill with a significant risk of death and needing care or support on July 1 (the end of the 26-week period specified on the certificate issued on January 1).

The employee is entitled to take a further eight weeks of family medical leave without getting a new certificate, as long as the leave is taken before December 31 (the end of the 52-week period) and the family member does not die.

Can an employee take additional leaves if the family member does not die within the 52-week period running from the start of the 26-week period in the first certificate?

Yes. The employee will be entitled to a new, additional leave if all the eligibility criteria are met, i.e. the family member remains seriously ill with a significant risk of death within 26 weeks and a further certificate is issued by a qualified health practitioner.

Has anything else changed?

No. The notice to the employer requirements, 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, and if an employee takes part of a week of leave, the employer may deem an entire week of leave to have been used. The employee may only return to work part way through a week of family medical leave if permitted to do so by the employer.

A “qualified health practitioner” now includes a nurse practitioner. What is a “nurse practitioner?”

A nurse practitioner is a registered nurse who is a holder of an “extended certificate” under the Nursing Act, 1991. A nurse practitioner does not include a “registered nurse” who is a holder of a general certificate, or a “practical nurse.”

What happens if the employee is not in Ontario when the certificate is issued? Will it be valid?

As long as the qualified health practitioner who issued the certificate holds an equivalent qualification from another jurisdiction, it is valid.

What happens to employees who are already on family medical leave?

If a certificate supporting an employee’s entitlement to family medical leave (whether it was an initial or additional leave) was issued before January 1st, 2018, the previous rules apply to that employee.

In practical terms, this means that the employee will be entitled to up to eight weeks of family medical leave whether they have begun the leave or not, and will only be eligible to qualify for the new, longer leave after the 26-week period referred to in the certificate ends.

Why have these changes been made?

On December 3, 2017, extended federal Employment Insurance compassionate care benefits became available to employees if they are taking a leave of absence from work to provide care or support to a terminally ill family member.

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