Workplace Wire

On December 8, 2011 we blogged about the Ontario Liberal Party’s plan to table amendments to the Employment Standards Act, 2000 (ESA) and introduce an eight week, unpaid “Family Caregiver Leave” to care for ill or injured family members. The proposed leave would be separate from (but could be combined with) the existing eight week Family Medical Leave to care for terminally ill family members.  These amendments (contained in Bill 30) have since passed first reading and the are now one step closer to becoming a reality for Ontario employers. 

Who would qualify for the proposed Family Caregiver Leave?

The proposed eight week, unpaid “Family Caregiver Leave” would be available to all employees (i.e. full-time, part-time, contract, etc.) who are covered by the ESA.  The leave would allow employees to leave their jobs for up to eight weeks per calendar year in order to care for, 

• 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 grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse
• the spouse of a child of the employee
• the employee’s brother or sister or
• a relative of the employee who is dependent on the employee for care or assistance. 

This list of qualified family members is narrower than that provided under the Family Medical Leave provisions and excludes, for example, the aunts / uncles and nieces / nephews of the employee or the employee’s spouse. 

In order to qualify for the leave, employees would be required to obtain a certificate from a “qualified health practitioner” stating that the family member has a serious medical condition.  The proposed legislation does not provide any guidance on what constitutes a “serious” medical condition, as it is currently drafted.  

Background of the Proposed Family Caregiver Leave

Premier Dalton McGuinty announced his intention to introduce the Family Caregiver Leave as part of his campaign platform in August, 2011. 

The Family Caregiver Leave appears to be motivated, at least in part, by the need to care for Canada’s aging population and the desire to facilitate the care of those individuals in their own homes, rather than in hospital beds.  Ontario Labour Minister Linda Jeffrey, in her statement to the legislature, said,

[w]e know that Canada’s population is aging and that more of our elderly parents and family members will be requiring care more than ever before.  The family caregiver leave would alleviate pressures on Ontarians who act as caregivers for their aging parents and loved ones.  It also means more people will have the option of being cared for at home, where they are most comfortable and where society’s costs are lower.

The McGuinty government appealed to the federal government to allow employees on the proposed Family Caregiver Leave to access Employment Insurance, as is currently the case for employees who qualify for Family Medical Leave.  However, to date, the federal government has not indicated that it is willing to support the initiative. 

If the legislation is passed, it could come into force as early as July 1, 2012. 

Implications for Employers

Small and medium sized employers could be particularly hard hit by the proposed Family Caregiver Leave because they lack the flexibility to respond to extended employee absences and could be required to hire replacement employees for unknown durations. The impact of the Family Caregivers Leave could also be exacerbated by the fact that employees are entitled to eight weeks per calendar year, per family member who requires care.  If the family member’s illness becomes terminal during the leave, the employee would be entitled to eight additional weeks of Family Medical Leave.

While many large employers already provide leaves of absence for employees to care for ill or injured family members, if the definition of a “serious” illness remains vague, they could face an onslaught of requests for caregivers leaves that go beyond the circumstances (and timelines) that they have historically accommodated. 

Regardless of size, all employers governed by the ESA will be required to revisit their leave policies and procedures if the Family Caregiver Leave is enacted. As always, we will continue to keep our readers posted as the legislation progresses.