Your Rights
Procedures for compasionate leavesJuggling work while looking after a loved one requiring end of life care is one of the most stressful things imaginable. ALAN SHANOFF |
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Whether you are providing moral support or actual care, this is a good time to be able to take a leave from work.
Some employers and some collective bargaining agreements allow for compassionate leaves, sometimes even with pay. You might even qualify for a short-term disability leave.
But what do you do if your employer doesn't permit, or doesn't provide any salary, during compassionate leaves?
Federal laws provide for employment insurance payments of up to six weeks pay after an initial two-week waiting period during a compassionate leave for eligible employees, but you must apply for this payment.
In Ontario, employment standards and labour code provisions also provide job protection during compassionate leaves.
Who qualifies?
Compassionate leaves may be taken for spouses, parents, children, siblings, grandparents and other specified relationships. It covers step- or foster parents, children and siblings, as well as in-law relationships.
You need a medical certificate stating that your loved one has a serious medical condition and has a significant risk of death within the next 26 weeks. Your loved one need not live in Ontario.
You must provide the medical certificate along with written notice advising your employer of your intent to take this leave of absence. You are allowed to take off up to eight weeks in the 26-week period. You need not take these in consecutive weeks, although you should take the time off in weekly increments. If you take off less than one week it will still count as an entire week. Therefore, taking off a few days each week is not a good idea.
If two or more employees want to take a leave for the same loved one they must pool the eight-week leave; for example, two parents
taking time off for a dying child must share the eight weeks, unless their employer provides a more generous benefit.
The leave ends on the earliest one of these three situations: on the last day of the week that your loved one dies, on the last day of the 26-week period or on the last day of your eight-week leave.
However, if death has not occurred during the 26-week period you may obtain another medical certificate which would entitle you to a further eight-week leave in a subsequent 26-week period.
In most cases your employer is not required to provide any salary payments during the leave period, although you may qualify for EI payments for a maximum of six weeks.
So, what good, you may ask, is this leave entitlement? Well, you can't be penalized or terminated for taking the leave. You are entitled to be reinstated to your position, if it still exists, or to a comparable position, if it does not. You are entitled to full credit for the time you were on leave for purposes of seniority and length of service.
Of course, the compassionate leave rules are not perfect. We can't always predict when a loved one might die. Eight weeks out of a 26-week period seems rather skimpy. Being entitled to a maximum of six weeks of EI may make it financially difficult for many to take any time off.
Valuable benefit
Still, being allowed to take the time off knowing that your job is being protected is a valuable benefit that only a small percentage of eligible employees take advantage of.
The rules can get technical, so before you do anything make sure you know your rights.
You can contact your Ontario Employment Standards Office (1-800-531-5551) or your EI office (1-800-206-7218) or go on their websites to get answers to your questions. Your employer's Human Resources department is also a good place to go to get answers.
Whatever you do, keep your boss informed, and remember that if you quit your job you will likely lose any rights you may have had in respect of EI payments as well as any termination pay entitlements.
Alan Shanoff was counsel to Sun Media for 16 years and is currently a freelance writer and teaches media law.
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