Family responsibility leave is unpaid, job-protected leave employees in Ontario can take when a close family member suffers an illness or injury or if there is an “an urgent matter” concerning a close family member.
Because family responsibility leave is “job-protected”, employers cannot terminate employees for taking such an absence.
To qualify for family responsibility leave, the employee must have been employed by the employer for at least two consecutive weeks, and a close family member (specified below) has to suffer an illness or injury or an “urgent matter” (specified below).
The eligible family members who get ill or injured or have an “urgent matter” thus entitling employees to family responsibility leave are:
- 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 of 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.
Common law relatives are included in the above list, and there is no time limit on how long the common law relationship is.
Family responsibility leave rules
Family responsibility leave is enshrined in section 50.0.1 of the Employment Standards Act. This means that family responsibility 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 responsibility leave, and any agreement to the contrary is void. Furthermore, an employer cannot refuse family responsibility leave, even in rare circumstances.
The actual text of the legislation for family responsibility leave, i.e. section 50.0.1(1) of the Employment Standards Act states:
Sec. 50.0.1 Family Responsibility Leave
(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 any of the following:
1. The illness, injury or medical emergency of an individual described in subsection (3).
2. An urgent matter that concerns an individual described in subsection (3). 2018, c. 14, Sched. 1, s. 19.
(2) An employee’s entitlement to leave under this section is limited to a total of three days in each calendar year.
(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.
What illnesses, injuries or medical emergencies are covered?
In general, all illness, injuries and medical injuries are covered by family responsibility leave.
Even medically necessary appointments and surgeries are covered. However, non-medically necessary appointments and surgeries are not covered, such as cosmetic surgery. It is nonetheless a policy of the Ontario Employment Standards Branch (who enforce the Employment Standards Act) that quasi-necessary surgeries like laser eye surgery are covered by this leave.
Still, annual checks ups are not covered by this leave according to the Employment Standards Branch. However, if a doctor’s appointment has been scheduled for the treatment or management of a chronic medical condition, those appointments would trigger an entitlement to this leave for the employee because they are absences related to an illness according to the Employment Standards Branch.
What is an “urgent matter”?
The ‘catch-all’ event that entitles an employee to family responsibility leave is an “urgent matter” that concerns any of the people listed in section 50.0.1(3) above.
The term “urgent matter” is not defined in the Employment Standards Act. Nevertheless, it is the Employment Standards Branch’s policy that the traits of an urgent matter are that the event is unplanned or out of the employee’s control, and raise the possibility of serious negative consequences, including emotional harm if it is not responded to. For example, according to the Employment Standards Branch, it is an urgent matter if:
- An employee’s nanny or babysitter calls in sick;
- The basement of an elderly parent floods and the parent is unable to deal with the situation; or
- An employee has an appointment to meet with their child’s counsellor to discuss behaviour problems at school.
On the contrary, according to the Employment Standards Branch, some examples of situations that are not an urgent matter include:
- An employee wishing to attend a brother’s wedding; or
- An employee wishing to attend a child’s play.
While both of these events are out of the employee’s control, the employee’s inability to attend these events does not raise the possibility of serious negative consequences.
How many days is family responsibility leave?
In Ontario, family responsibility leave is three days off work per year. Unfortunately, if the specific family member’s illness is prolonged, an employee is still only allowed to take three days maximum of family responsibility leave each calendar year. The entitlement is a total of three days of family responsibility leave per calendar year, not three days per relative. However, a thoughtful employer is permitted to allow extra days of family responsibility leave if it so chooses.
The Employment Standards Act does not require that family responsibility leave days be taken consecutively or individually. Employees can take family responsibility leave in part days. For example, an employee can take one family responsibility leave day in February if a relative suffers an accident and two more family responsibility leave days in September if another relative becomes ill.
Full time and part time employees get the same amount of family responsibility leave.
How to tell an employer an employee is going on family responsibility leave?
Section 50.0.1(4) of the Employment Standards Act requires employees to tell their employers in advance that they will be taking family responsibility 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 family responsibility leave in writing. Rather, an employee can just call in or tell their boss at work.
Can an employer ask for a note evidencing the illness, injury or urgent matter?
Subsection 50.0.1(7) of the Employment Standards Act gives an employer the right to require an employee to provide evidence “that is reasonable” that illness, injury or an urgent matter occurred.
Evidence of an illness or injury are doctor’s notes, and for urgent matters, for example, evidence could include a note from a daycare provider that it was closed or an invoice from a plumber who was called in to deal with a parent’s flooded basement.
Is family responsibility leave paid?
No, after changes to the law in 2019, family responsibility leave in Ontario is not paid. However, an employer is free to pay an employee on family responsibility 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.