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Critically Ill Child Care Leave

  • Revised: November 20, 2015
  • Content last reviewed: November 2015

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.

Critically ill child care leave is unpaid job-protected leave of absence of up to 37 weeks within a 52-week period.

Eligibility

Critically ill child care leave may be taken to provide care or support to a critically ill child of the employee for whom a qualified health practitioner has issued a certificate stating:

  1. that the child is a critically ill child who requires the care or support of one or more parents, and
  2. sets out the period during which the child requires the care or support.

A “child” means a child, step-child, foster child or child who is under legal guardianship, and who is under 18 years of age.

A “critically ill child” means a child whose baseline state of health has significantly changed and whose life is at risk as a result of an illness or injury. It does not include chronic conditions.

All employees who have been employed by their employer for at least six consecutive months and who are covered by the Employment Standards Act, 2000 (ESA) may be entitled to critically ill child care leave, whether they are full-time, part-time, permanent or term contract.

Qualified Health Practitioner

For critically ill child care leave purposes, a qualified health practitioner is a person who is qualified to practice as a physician, registered nurse, or psychologist under the laws of the jurisdiction in which care or treatment is being provided. In Ontario, this includes psychiatrists and nurse practitioners.

Different types of health practitioners may be able to issue certificates in different jurisdictions; it will depend on the laws of that jurisdiction.

The 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 critically ill child care leave.

The certificate must:

  • name the child
  • state that the child is critically ill or has been critically injured (there is no requirement that the certificate specify what illness or injury the child has; it need only state that the child is critically ill or critically injured)
  • state that the child requires the care or support of at least one parent, and
  • set out the period during which the child requires the care or support.

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 critically ill child care leave. The employee is required to provide the copy as soon as possible after the employer requests it.

The employee may wish to provide the health practitioner with the “Medical Certificate to Support Entitlement to Family Caregiver Leave, Family Medical Leave, and/or Critically Ill Child Care Leave” form for him or her to fill out. It is available on the ministry’s website at Ontario.ca/ESAforms. There is no requirement that the health practitioner use this particular form. Any certificate that states that the child is a critically ill or injured child needing the care or support of one or more parents, and indicating the period during which the care or support will be required can be used.

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) benefits for parents of critically ill children, 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 critically ill child care leave.

Employment Insurance Benefits

Parents who take leave from work to provide care or support to their critically ill child may be eligible to receive Employment Insurance (EI) special benefits for Parents of Critically Ill Children (PCIC) for up to 35 weeks. 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 critically ill child care leave provisions of the ESA is not the same as the right to the payment of the EI benefits for PCIC under the federal Employment Insurance Act. An employee may be entitled to a critically ill child care leave whether or not he or she has applied for, or qualified for, the new EI benefits for PCIC.

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

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

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 and Timing of Critically Ill Child Care Leave

A critically ill child care leave can last up to 37 weeks within a 52 week period.

If a medical certificate issued by a qualified health practitioner sets out a period of less than 37 weeks that the critically ill child requires care or support of one of the parents, the employee is entitled to take a leave only for the period set out in the certificate.

If the certificate states that a child is critically ill and requires the care or support of one or more parents for a period of 52 weeks or longer, the 37 weeks of leave may end no later than the last day of the 52-week period that begins on the first day of the week in which that child became critically ill. (The employee may, however, be entitled to an “additional” leave at the end of the 52-week period – see the heading “Additional Leaves” later in this chapter.)

A “week” is defined as running from Sunday to Saturday.

The weeks in which critically ill child care leave is taken can be consecutive, or they can be separated.

The employee may take leave for periods less than a full week (for example, single days, at the beginning, middle or end of a week) but if they do, they are considered to have used up one week of their entitlement. If the employee is on leave for two or more periods within the same week (for example, on leave on Monday and Thursday of the same week) only one week of the entitlement is used up.

The employee is entitled to be on leave only when the employee is providing care or support to the critically ill child.

The employer cannot require the employee to take an entire week of leave if the employee only wants to take leave for a single day(s), cannot prevent the employee from working prior to taking a single day(s) of leave during a week, and cannot prevent the employee from returning to work after a single day(s) of leave during the week.

Critically Ill Child Care Leave for More than One Child

An employee is entitled to take leave only for 37 weeks in a 52-week period even if more than one child is critically ill, if the children are critically ill as a result of the same event.

Example

Paul’s two children were exposed to dangerous chemicals. A qualified health practitioner issued certificates on the same day stating that both children were critically ill and required care or support of a parent for 40 weeks. Paul is entitled to take critically ill child care leave of up to 37 weeks.

Death of a Child

If a critically ill child dies while an employee is on a critically ill child care leave, the employee’s entitlement to be on leave ends at the end of the week (which is defined as being a Saturday) in which the child dies.

Exception: More than One Child

The employee’s entitlement to be on a leave does not end at the end of the week in which the critically ill child dies if more than one child of the employee is critically ill as a result of the same event and the other child (or children) are still critically ill.

Sharing Critically Ill Child Care Leave

The total amount of critically ill child care leave that may be taken under the ESA by one or more employees in respect of the same child, or children who are critically ill as a result of the same event, is 37 weeks.

For example, a critically ill child requires the care or support of a parent for 40 weeks. If one parent took critically ill child care leave pursuant to the ESA for 35 weeks, the other parent can only take critically ill child care leave pursuant to the ESA for 2 weeks. The parents could take the leave at the same time or at different times.

Child Turns 18 While Employee is on Critically Ill Child Care Leave

Employees do not lose eligibility for critically ill child care leave if their child turns 18 after starting the leave.

Further Leave

A qualified health practitioner might underestimate the period of time a child will require the care or support of a parent. If the practitioner estimated the period to be less than 52 weeks but the child is still critically ill at the end of the period set out in the certificate, a second medical certificate can be issued to allow an employee to extend their leave.

Example

Mark’s child became critically ill on January 1. The certificate issued on January 1 stated that the child requires the care or support of a parent for four weeks (until January 28). The child is still critically ill on January 28. Another certificate is issued on January 29, stating that the child will require care or support of a parent for another three weeks (until February 18). Mark is entitled to four weeks of leave during the period January 1 to January 28 and to a “further” leave of three weeks during the period January 29 to February 1, for a total of seven weeks of leave.

Note, however, that the original leave and the extension(s) cannot be longer than 37 weeks in a 52-week period.

Example

Gail’s child became critically ill on January 1. The certificate issued on January 1 stated that the child requires the care or support of a parent for 30 weeks (until July 29). The child was still critically ill on July 29. Another certificate was issued on July 30 stating that the child will require care or support for another ten weeks (until October 6). Although Gail was entitled to take leave during the 30-week period from January 1 to July 29, and to take a “further” leave during the 10-week period from July 10 to October 6, the total amount of leave she is entitled to is 37 weeks during that 40-week period.

Additional Leaves

If one or more children remain critically ill after the 52-week period has expired, the employee is entitled to take another leave if the requirements for eligibility are met.

Example

A qualified health practitioner issued a certificate on January 1, 2015, stating that Frank’s daughter Rooney is critically ill and requires the care or support of a parent for 52 weeks. Frank is entitled to up to 37 weeks of critically ill child care leave during that 52-week period. Rooney remains critically ill on Sunday, January 1, 2016. Another certificate is issued on January 1, 2016, stating that Rooney remains critically ill and requires the care or support of a parent for another 40 weeks. Frank is entitled to a new, “additional” leave of 37 weeks in the 52-week period starting Sunday, January 1, 2016.

Notice Requirements: Advance Notice and Written Plan

An employee who intends to take critically ill child care leave must inform the employer in writing that he or she will be taking such leave and provide the employer with a written plan that indicates the weeks in which he or she will take the leave.

If an employee has to begin a critically ill child care leave before notifying the employer, he or she must inform the employer in writing and provide a written plan as soon as possible after starting the leave.

Change in Employee’s Plan

An employee may take a leave at a time other than that indicated in their original plan provided to their employer so long as the new dates fall within the dates the ESA allows, and:

  1. the employee requests permission from the employer to do so in writing and the employer grants permission in writing; or
  2. the employee provides the employer with reasonable advance notice of the change in writing.

There is no limit on the number of times the employee can change their plan, so long as the requirements described above are met each time.

Rights During and at the End of a Critically Ill Child Care Leave

Employers do not have to pay wages when an employee is on critically ill child care leave.

Employees who take critically ill child care 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 critically ill child care leave. See “Rights During Pregnancy and Parental Leaves” in the Pregnancy and Parental Leave chapter.


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