Yes, we all know that work is important, but as an employer it’s key to realize that things will happen in your employee’s lives that require time away from work. Whether it be happy moments like the birth of a child, or tough times like a family member falling ill—Ontario workers have a wide range of absence leaves available to them, along with many other rights (which can be found in the Ontario Labour Laws).
This post will outline everything an employer needs to know about leave of absence in Ontario, from what types of absence leaves are available, to the employee’s and employer’s rights during said absence.
So, what is a Leave of Absence?
Let’s get right into it. A leave of absence is a temporary stoppage of work that is initiated by the employee. It’s unpaid (unless otherwise decided by the employer), and the employee’s job is protected.
When an employee has a genuine leave of absence, you as an employer must give said employee their job back once the leave of absence has concluded. If that job no longer exists, then a similar job must be given to the employee.
Leave of Absence Ontario Types and Rules
Under the Employment Standards Act (ESA) in Ontario there are multiple types of leaves of absence available to Ontarians. Depending on the type of leave of absence, important factors such as length of the leave, notice requirements, and whether or not evidence is mandatory varies.
Below is a chart outlining how these factors change for each type of leave:
There are also times in which employees may need to take an emergency leave. For example, on March 17, 2020, an emergency was declared in Ontario due to COVID-19 (coronavirus). This emergency falls under the Emergency Management and Civil Protection Act (EMCPA), and gives employees the right to take emergency leave if they cannot perform their duties due to COVID-19.
Are There Exceptions to the ESA Leave of Absence List?
If a leave is taken for a reason other than those outlined by the ESA, then the employee’s job is not protected by law, and they will not be entitled to the guarantee of returning to their job after said leave.
However, if an employee requests a leave of absence for a reason other than those in the ESA—such as time off to complete their MBA—you as an employer can still agree to grant them that leave with the guarantee of returning to their job. This is totally your choice.
In the case of granting a custom leave of absence, it is suggested that a simple contract is signed by both you as the employer, and the employee taking the leave. This contract should go over the length and details of the leave, as well as the employees rights upon their return.
If your employees wish to take time off for a holiday, this is another type of pay completely. Unless of course they go over their allotted vacation days, such as a month long summer vacation, in which case they may need to take a custom leave of absence.
Can Employees Take off Leave for Psychological Reasons, Such as Stress or Depression?
Yes, employees have the right to take off leave for physiological reasons.
When someone is suffering from large amounts of stress or depression, it can be considered a sickness. Therefore they are entitled to the three day sickness leave, under the ESA.
Are Leave of Absences Paid or Unpaid?
For the most part no, by law, you as an employer are not required to pay your employees during a leave of absence.
The only situation where you must pay is if the leave of absence is due to domestic violence or sexual assault. In that case, you must pay the employee for the first five days of their leave.
Although not legally required, some employers opt to pay a portion of their employees salary during certain types of leaves such as pregnancy and parental leaves. In fact, many companies who are trying to attract top talent will offer certain paid leaves as a part of their employee contract.
What are an Employee’s Rights During a Leave of Absence?
In Ontario, employees have the right to take unpaid leaves of absence for the reasons outlined under the ESA. These leaves are protected, meaning that the employee is entitled to the returning to their job once said leave is over. If the job ceases to exist upon the employees return, then they must be given a “comparable position”.
During leaves of absence, the employee will continue to be credited for length of service, and earn seniority. They will also remain on benefit plans. So, while an employee is on leave, you as an employer must continue to pay your contributions, just like the employee must still pay theirs. That will not be the case if (depending on how your plan is structured) the employee opts out of these benefit plans by providing the employer written notice that they no longer intend to pay their portion of the contributions.
What are an Employer’s Rights during Leave of Absence?
This is not a one way street—you as an employer also have rights when it comes to leave of absence in Ontario.
First of all, you have the right to receive notice from your employees when they are going to be taking a leave of absence. The type of notice that is required differs depending on the type of leave that is taking place. The notice that is required can be seen in the chart shown earlier in this blog.
Depending on the type of leave, you also have the right to receive evidence from the employee that the reason they are taking their leave of absence is in fact real. There might be a certain scenario where the employee is lying, and therefore may be subject to termination.
Do I Need a Leave of Absence Request Form for my Company?
Nope, there is no set form that needs to be filled out in order for an employee to take a leave of absence.
As per the chart seen earlier in the blog, the notice requirements differ based on the type of leave that is being requested, but in most all cases, written notice is required from the employee.
All that is required for there to be written notice is a simple email that describes the date the leave of absence is taking place, as well as the reason for the leave.
In summation, both the employee and employer have rights when it comes to leave of absence in Ontario. It’s important to remember that when an employee is requesting a leave, it’s likely for a very serious and/or personal matter. Make sure to treat each scenario with care and compassion, while also using your right to ask for evidence and follow the rules outlined by the government.