Leave of Absence Laws (Ontario)

Leave of Absence

A leave of absence is a temporary stoppage of work initiated by an employee. What makes a leaves of absence different than a break from work or resignation is the fact that in most circumstances, a leave of absence protects an employee’s job. In other words, when an employee is on a genuine leave of absence, the employer must allow the employee to return to the same job, or a similar one if the old job no longer exists. 

What kinds of leaves of absence are there?

There are many different kinds of leaves of absence in Ontario prescribed by the provincial government in legislation called the Employment Standards Act [“ESA”]. The most common leaves of absences are maternity and parental leave. Other, less common leaves of absences in Ontario include: 

Leave of absence lengths and chart

LeaveMaximum Length Per Year (ESA)Notice RequirementsCan employer ask for evidence?
Maternity Leave17 weeks2 weeks’ written noticeYes
Parental Leave61-63 weeks2 weeks’ written noticeNo
Sick Leave3 daysOral or written notice; no timeframesYes
Family Responsibility Leave3 daysOral or written notice; no timeframesYes
Family Caregiver Leave8 weeksWritten notice, no timeframesYes
Infectious Disease Emergency LeaveNo limit (but government can revoke it)Oral or written notice; no timeframesYes
Family Medical Leave28 weeksWritten notice, no timeframesYes
Critical Illness Leave17-37 weeksWritten notice, no timeframes; employee must provide timeline for returnYes
Child Death Leave104 weeksWritten notice, no timeframes; employee must provide timeline for returnYes
Crime-Related Child Disappearance Leave2 weeks (no death)/104 weeks (death)Written notice, no timeframes; employee must provide timeline for returnYes
Organ-Donor Leave13 weeks, and then another 13 week extention2 weeks’ written noticeYes
Reservist LeaveUnlimited4 weeks’ written noticeYes

How to qualify for a leave of absence? 

To qualify for any of the above-noted prescribed leaves of absence, an employee has to meet a particular test that is different for each leave. For instance, to qualify for Family Caregiver Leave, an employee must get a qualified health practitioner to issue a certificate stating that a close family member whom the employee is caring for or supporting has a “serious” medical condition.

Who is entitled to a leave of absence?

Unless a leave of absence is for any of the reasons mentioned above, then it is not job-protected, meaning an employer can fire an employee on such a leave. To that end, any employee who just wants to take a break from work for no reason at all, or who wants to take a sabbatical or anything like that has no protection under the law if they elect to take a leave. An employer can refuse to allow such a leave of absence. Alternatively, there is nothing stopping workplace parties from merely agreeing to a leave of absence for no prescribed reason. For example, an employee may ask an employer to take an unpaid summer break to travel the world, and the employer may agree to reinstate him or her back when they return from their trip. To that end, the parties may draft a simple one-page contract that allows the leave, sets the timeframe, and discusses the parties’ rights upon return from the leave. Or, the employer can refuse the request for the non-prescribed leave, and if the employee still takes the leave, they have effectively resigned. 

On the contrary, if any employee in Ontario (who meets the length of service threshold of each leave) has reason to take any of the above-mentioned leaves of absence, then the employer has no choice but to accept. Likewise, as discussed above, an employer cannot terminate the employee when they return from the leave or alter their job, unless it no longer exists, in which case the employee must be put back in a “comparable position”. 

For instance, if an employee has a baby, they are entitled to job-protected maternity or parental leave. However, if an employee just wants to spend more time with his or her teenage children, then that employee has no entitlement to job-protected leave. The only thing an employee can do if they want to take job-protected leave in non-prescribed circumstances is to ask their employer to agree to such leave. 

The key to who can take a prescribed leave of absence is whether the employee qualifies for the leave according to the specific law about the leave. Click on the links to each leave to see the relevant law. If an employee does not qualify for a prescribed leave, and they take a leave, then they have no protection.

Are leaves of absence paid or unpaid?

The law does not require an employer to pay employees on a leave of absence (except the first five days of domestic or sexual violence leave). However, some employers do pay employees on a leave of absence.

Some employers pay employees a percentage of their salary while they are on maternity or parental leave, but they do not have to. Likewise, many employers pay employees their full salary on short sick leaves, although, by law, they do not have to. 

Nevertheless, some employees on a leave of absence may qualify for employment insurance. In addition, some employers provide their employees with the benefit of topping up employment insurance during a leave of absence. This is not required, though. 

Lastly, some employees may have short term or long-term disability insurance through their work that would pay them income during certain leaves. 

Rights during a leave of absence

In Ontario, as per the Employment Standards Act, all employees are entitled to take protected, unpaid leaves of absence for the prescribed reasons. In this regard, employees must be reinstated to the same position they held before their leave if it still exists, or to a “comparable position” if not. 

What is a “comparable position”? It is not enough just to offer the returning employee a position with the same pay. Instead, it is a contextual question, based on whether the new job is more or less appealing than the original job, viewed objectively from the perspective of an employee in a similar position to that of the employee.

Employees on leave continue to earn seniority and credit for length of service. 

Employees are also entitled to continue to participate in certain benefit plans while on leave. An employer is required to continue paying the employer’s contributions and the employee continues to pay the employee’s portion of the premiums due unless the employee gives the employer written notice that they do not intend to pay the employee’s contributions.

If an employer refuses a legitimate leave of absence, or intimidates an employee, fires an employee, suspends an employee, reduces an employee’s pay, or punishes an employee in any way for requesting or going on any of the prescribed leaves, then the employer could be liable to rehire the employee, pay the employee back-pay, and/or pay the employee damages for wrongful dismissal and or breach of human rights.

Personal leave of absence

There used to be something called personal emergency leave, but that was eliminated in 2019. When it was in place, personal emergency leave allowed most employees to take up to 10 days of job-protected leave each calendar year due to illness, injury, death and specific emergencies and urgent matters, which was a catch-all for many different events. Still, it is important to stress – this personal leave of absence no longer exists; it was repealed by the Ford government. 

Leave of absence reasons

To qualify for a job-protected leave of absence, you have to have a valid reason prescribed by the ESA. To learn what reasons would entitle you to a specific leave of absence, read the corresponding article we have prepared on each specific leave of absence: 

For any other kind of leave of absence, like a sabbatical, you do not need a reason to take the leave, but you also don’t get any protection, and your employer can refuse your request to take such a leave. Only the above-noted leaves of absence have job protections.

Leave of absence laws

Each prescribed leave of absence has its own rules as contained in Part XIV of the ESA. For each prescribed leave of absence, there is generally the following laws:

  • What triggers an entitlement to this leave; 
  • How long an employee has to work before they can take a leave;
  • Advising the employer;
  • Amount of leave;
  • Evidence (i.e. notes).

Therefore, the rules and laws about each leave of absence vary. No two leaves of absence are the same. Click on the links below to learn more about the specific laws of some of the prescribed leaves of absences. 

How to ask for a leave of absence

Each prescribed leave of absence has its own rules about how to ask for a leave of absence. In short, employees have to give notice in writing in most cases or orally in fewer cases, usually with some amount of notice (i.e. two weeks’ notice). In most cases where advanced notice is not possible (like emergencies), an employee must notify their employer about the leave as soon as possible after beginning the leave. Most leaves of absence do not have a requirement to provide a return to work date. 

Here is a summary of asking for leave for each kind of prescribed leave:

Maternity Leave: A pregnant employee must give two weeks’ written notice of her intention to take pregnancy leave. Also, the employee must submit a medical certificate that shows the due date, if asked to do so by the employer.

Parental Leave: An employee who wishes to take parental leave is required to give at least two weeks’ notice in writing of their intention to take parental leave.

Sick Leave: Employees must tell their employers ahead of time that they will be taking sick leave. An employer may require an employee who takes sick leave to provide evidence reasonable in the circumstances that the employee is entitled to the leave.

Read More: Is there Stress Leave in Ontario?

Family Responsibility Leave: Employees must tell their employers ahead of time that they will be taking family responsibility leave. There is no requirement that the employee must advise the employer of the family responsibility leave in writing. Oral notice is sufficient.

Bereavement Leave: An employee who wishes to take a bereavement leave shall advise his or her employer that he or she will be doing so. There is no requirement that the employee must advise the employer of the family responsibility leave in writing. Oral notice is sufficient. An employer may require an employee who takes a bereavement leave to provide evidence reasonable in the circumstances that the employee is entitled to the leave.

Organ Donor Leave: An employee who wishes to take organ donor leave is required to give at least two weeks’ notice in writing to the employer of his or her intention to take an organ donor leave. An employee taking organ donor leave must supply a medical certificate if asked. 

Family Medical Leave: An employee who wishes to take family medical leave must advise their employer in writing that he or she will be doing so. There is no minimum notice. An employee taking family medical leave must supply a medical certificate if asked.

Family Caregiver Leave: An employee who wishes to take a family caregiver leave shall advise his or her employer in writing that he or she will be doing so. An employee taking family caregiver leave must supply a medical certificate if asked.

Critical Illness Leave: An employee who wishes to take a critical illness leave must advise their employer in writing that they will be doing so and must provide the employer with a written plan that indicates the weeks in which they will take the leave. An employee taking critical illness leave must supply a medical certificate if asked.

Child Death Leave: An employee who wishes to take a child death leave shall advise the employer in writing and shall provide the employer with a written plan that indicates the weeks in which the employee will take the leave. An employer may require an employee who takes child death leave to provide evidence reasonable in the circumstances of the employee’s entitlement to the leave.

Crime-related child disappearance leave:  An employee who wishes to take a crime-related child disappearance leave shall advise the employer in writing and shall provide the employer with a written plan that indicates the weeks in which the employee will take the leave. An employer may require an employee who takes a crime-related child disappearance leave to provide evidence reasonable in the circumstances of the employee’s entitlement to the leave.

Domestic or sexual violence leave: An employee who wishes to take a domestic or sexual violence leave shall advise the employer that the employee will be doing so. An employee who wishes to take a domestic or sexual violence leave shall advise the employer in writing that the employee will be doing so.

What is “evidence reasonable in the circumstances” (i.e. notes)?

It is case dependent regarding what is reasonable in the circumstances regarding what an employee must provide to an employer as evidence of entitlement to leave. No case is the same. But in house-lawyer Sean Bawden, pointed out in his blog that one OLRB decision did answer what is “evidence reasonable in the circumstances”:

[27] Determining what is “reasonable in the circumstances” requires a balancing of the rights and the interests of both the employee and the employer. The employee has a statutory right to the emergency leave. The employer has the right to operate its business in a productive manner. Both the employee and the employer must comply with the Act and have an interest in working together harmoniously to ensure that the emergency leave provisions are used properly and productively. Ideally, employees and employers will work cooperatively to ensure that this goal is achieved. Achieving this goal is optimized when the employee provides the best evidence that is reasonably available to establish that he is entitled to personal emergency leave.

[28] The evidence requested should also bear proportionality to the emergency leave. For example, if the emergency leave is for only one day, and there are no other extenuating circumstances, the employee’s own statement may be sufficient, and it may not be reasonable to require an employee to incur the time and expense of obtaining other evidence, such as a medical certificate, to verify his mother’s illness. However, where there are grounds to question the legitimacy of the request, it may be reasonable to require evidence greater than the employee’s own statement.

[29] An example of reasonable, balanced and proportionate evidence is found in Tilbury Assembly, in which Arbitrator Crljenica ruled, on the particular facts of that case, that it was not reasonable for an employer to require a note from a doctor to verify that an employee had a migraine, because it was not necessary for the employee to see a doctor for the migraine, but rather a note from a pharmacist and a receipt for migraine medicine was sufficient “evidence reasonable in the circumstances”. Similarly, there may be circumstances in which it is reasonable for the employee to provide other evidence such as parking receipts as proof that he was at a hospital with his mother.

Access Alliance Multicultural Community v Health, Office, Professional Employees and Education Division of UFCW, Local 175, 2012 CanLII 95768 (ON LA)

Leave of Absence Request Template

Ontario leave of absence

If an employee must provide notice in writing of his or her intention to take a leave of absence (see above for notice requirements), a simple email to the boss will suffice. It could only say, for example, for parental leave:

July 6, 2020

Dear Ms Smith:

Please be advised I will be taking parental leave in two weeks, on July 21, 2020.  

Thank you,

Adam Jones

Dutton Employment Law is a Toronto employment law group advising employees and employers in Ontario. Call for a free consultation with an employment lawyer or paralegal.

Books I Recommend