In Ontario, bereavement leave allows employees to take up to two days of unpaid leave from work each calendar year because of the death of certain relatives.
The actual text of section 50.0.2(1) of the Employment Standards Act says:
50.0.2 (1) An employee who has been employed by an employer for at least two consecutive weeks is entitled to a leave of absence without pay because of the death of an individual described in subsection (3).
50.0.2 (3) Subsection (1) applies with respect to the following individuals:
1. The employee’s spouse.
2. A parent, step-parent or foster parent of the employee or the employee’s spouse.
3. A child, step-child or foster child of the employee or the employee’s spouse.
4. A grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee’s spouse.
5. The spouse of a child of the employee.
6. The employee’s brother or sister.
7. A relative of the employee who is dependent on the employee for care or assistance.
Accordingly, to be eligible for bereavement leave, an employee (1) must have been employed for at least two weeks and (2) lose their spouse, parent, grandparent, brother or sister, child, or close relative who provides the employee care. If it is not one of these relatives who died, the employee is not entitled to take bereavement leave.
How many days is Bereavement Leave?
Bereavement Leave is two days off work per year. Unfortunately, if it is a rough year, and several relatives die, an employee is still only allowed to take two days maximum of bereavement leave each calendar year as per minimum employment standards. The entitlement is a total of two days of bereavement leave per calendar year, not two days per relative who died. However, a thoughtful employer should permit extra days of bereavement leave if multiple close relatives pass away, although it doesn’t have to.
The Employment Standards Act does not require that bereavement leave days be taken consecutively or individually. Employees can take bereavement leave in part days. For example, an employee can take one bereavement leave day in February if a relative dies and another bereavement leave day in July if, sadly, another relative dies.
When to take Bereavement Leave?
Employees can take two days of bereavement leave right after a relative dies or at a later date to attend a burial, interment or memorial service for the deceased.
Telling an employer an employee is going on Bereavement Leave?
Section 50.0.2(4) of the Employment Standards Act requires employees to tell their employers in advance that they will be taking bereavement leave. However, where this is not possible or reasonable to tell an employer in advance, an employer is permitted to tell the employer as soon as possible after beginning the leave.
The Employment Standards Act does not require an employee to advise its employer of the taking of bereavement leave in writing. Rather, an employee can just call in or tell their boss at work.
Can an employer ask for a note evidencing a relative’s death?
Subsection 50.0.2(7) of the Employment Standards Act gives an employer the right to require an employee to provide evidence “that is reasonable” that a relative died.
Evidence that a relative died may include, for example, a copy of a death certificate, an obituary or a program from a memorial service.
No case law exists that has determined what is precisely required vis-a-vis “reasonable” evidence that a relative died. Certainly, no litigation has commenced because an employer denied a simple two days of unpaid leave for a death in the family in response to an employee supposedly failing to provide reasonable “evidence” of the death. I think such an action would make the news because it would be in such poor taste. Certainly, many employment law bloggers would be quick to call out the employer.
Is Bereavement Leave paid?
No, after changes to the law in 2019, bereavement leave in Ontario is not paid. However, an employer is free to pay an employee on bereavement leave if it so chooses.
Jeff is a lawyer in Toronto who works for a technology startup. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles. Jeff is interested in Canadian business, technology and law, and this blog is his platform to share his views and tips in those areas.