Family Caregiver Leave is unpaid, job-protected leave employees in Ontario can take when they must provide care or support to a family member with a serious medical condition.
Because Family Caregiver Leave is “job-protected”, employers cannot terminate or discipline employees for taking such an absence.
Family Caregiver Leave Eligibility
Unlike most other Ontario statutory leaves, there is no requirement that the employee must have been employed by the employer for at least two consecutive weeks to take Family Caregiver Leave. To be clear, there are no minimum days of work that an employee needs to have worked to be allowed to take Family Caregiver Leave.
An employee is eligible for Family Caregiver Leave if a qualified health practitioner issues a certificate stating that the individual whom the employee is caring for or supporting has a “serious” medical condition.
The eligible family members who have a serious medical condition, thus entitling employees to Family Caregiver Leave are only:
- 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.
- A relative of the employee who is dependent on the employee for care or assistance.
Family Caregiver Leave rules
Family Caregiver Leave is enshrined in section 49.3 of the Employment Standards Act. This means that Family Caregiver Leave is an employment standard, and therefore employees and employers cannot contract out of it. In other words, an employer has no choice but to allow Family Caregiver Leave, and any agreement to the contrary is void. Furthermore, an employer cannot refuse Family Caregiver Leave, even in rare circumstances.
The actual text of the legislation for Family Caregiver Leave, i.e. section 49.3 of the Employment Standards Act states:
49.3 (1) In this section,
“qualified health practitioner” means,
(a) a person who is qualified to practise as a physician, a registered nurse or a psychologist under the laws of the jurisdiction in which care or treatment is provided to the individual described in subsection (5), or
(b) in the prescribed circumstances, a member of a prescribed class of health practitioners;
“week” means a period of seven consecutive days beginning on Sunday and ending on Saturday.
Entitlement to leave
(2) An employee is entitled to a leave of absence without pay to provide care or support to an individual described in subsection (5) if a qualified health practitioner issues a certificate stating that the individual has a serious medical condition.
Serious medical condition
(3) For greater certainty, a serious medical condition referred to in subsection (2) may include a condition that is chronic or episodic.
(4) An employee is entitled to take up to eight weeks leave under this section for each individual described in subsection (5) in each calendar year.
(5) Subsection (2) applies in respect of 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 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. 8. Any individual prescribed as a family member for the purpose of this section.
(6) An employee who wishes to take a leave under this section shall advise his or her employer in writing that he or she will be doing so.
How many days is Family Caregiver Leave?
In Ontario, Family Caregiver Leave is eight weeks off work per calendar year.
The entitlement is a total of eight weeks’ of Family Caregiver Leave per relative, not per year. Thus, if two family members require care or support, an employee can take two sets of eight-weeks off work.
The Employment Standards Act does not require that Family Caregiver Leave days or weeks be taken consecutively or individually. Employees can take Family Caregiver Leave in part days or weeks or even months. However, if an employee one takes one or two days off per week for Family Caregiver Leave, then a whole week is counted in regard to remaining eligibility. Each time a day is taken in a single week, a single week of leave is deemed to be removed from the employee’s eligibility.
Full time and part-time employees get the same amount of Family Caregiver Leave.
How to tell an employer an employee is going on Family Caregiver Leave?
The Employment Standards Act requires employees to tell their employers in advance that they will be taking Family Caregiver 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 require an employee to advise its employer of the taking of Family Caregiver Leave in writing. A simple email or a short hand-letter to one’s boss will suffice.
Can an employer ask for a note evidencing the medical condition?
An employee is eligible for Family Caregiver Leave only if a qualified health practitioner “issues” a “certificate” stating that the relative has a serious medical condition. Therefore, an employer may ask for a doctors note (i.e. a “certificate”).
Because the law used uses the present tense word, “issues” (as opposed to “has issued”), an employee may begin a Family Caregiver Leave before a certificate is “issued”. To that effect, an employee might obtain the certificate soon after beginning the leave, or after the leave is over.
The certificate must (1) name the family member who is getting care or support and (2) state that they have a serious medical condition.
What is a “serious medical condition”? a serious medical condition includes a condition that is chronic or episodic. There is no requirement that the certificate specifies what the medical condition is; it need only indicate that it is “serious”. The Ontario Ministry of Labour says it is for the health practitioner, and no one else, to make an assessment as to whether the individual’s medical condition is serious; if they issue a certificate stating that the individual has a serious medical condition, the requirement is met. To that effect, an employer cannot question whether someone has a “serious” medical condition.
A medical certificate authorizes Family Caregiver Leave from the date it is issued until the end of the calendar year in which it was issued.
Is Family Caregiver Leave paid?
No, after changes to the law in 2019, Family Caregiver Leave in Ontario is not paid. However, an employer is free to pay an employee on Family Caregiver Leave if it so chooses.
Dutton Employment Law is a Toronto employment law group advising employees and employers in Ontario. Call for a free consultation.