Leave of Absence

Employers, understandably, want to keep work absences to a minimum, but they must honour certain leaves of absences which employees have a legal right to take.

Are employees entitled to leaves of absence?

Employees in Ontario are entitled to certain leaves of absence under the Employment Standards Act. Those leaves of absence include:

  • Vacation
  • Public Holidays (or lieu days)
  • Pregnancy and parental leave
  • Sick leave
  • Bereavement leave
  • Family responsibility/caregiver/medical leave
  • Critical illness leave  
  • Crime-related child disappearance leave

Do employers have to pay for these leaves of absence?

Generally, no. The only leaves of absence that must be paid are holidays and vacations. Employers may (but are not required to) adopt policies that provide for other paid absences, such as paid sick days. Employers be warned, however, that once a workplace adopts such a policy, the employer is required to follow it - even if it confers a benefit greater than that provided by legislation.

Can employees take more than 3 sick days per year?

The Employment Standards Act provides for just three days of unpaid sick leave per year. What happens, then, if an employee uses more than 3 sick days? What happens if an employee exceeds their other leave entitlements like family responsibility leave or critical illness leave? Can that employee be disciplined, or terminated for cause?

The answer is "sometimes". It depends on whether or not the excessive absences are related to a human rights ground. If they are, then the employer's duty to accommodate is triggered, up to the point of "undue hardship." Disciplining or terminating an employee in such circumstances is generally not advisable.  

A common example is a long absence from work caused by a medical condition. An employee can almost never be disciplined or terminated because a medical condition (i.e. disability) causes them to miss work. In such cases, the employer will have to keep the employee "employed" for quite some time, until the employee has no foreseeable prospect of returning to work after a long period of absence related to the disability (usually about 2 years).  

Can an employer make rules relating to different leaves of absence?

Definitely - subject to two important considerations. First, an employer's policies dealing with leaves of absence must not fall short of the minimum standards set by the Employment Standards Act. Such policies are not only unenforceable, they have the risk of creating liability. Second, to the extent a policy provides for a benefit greater than the minimum set out in the Employment Standards Act, employers must recognize that they may be bound to honour this benefit - even if the benefit conferred is unintentional. For this reason, we strongly recommend that all employers have their leave of absence policies either drafted or reviewed by an expert employment lawyer. Ideally, those policies should be created by someone with a solid understanding of the statutory minimums, as well as how to grant additional benefits to employees in a controlled manner.

What can Hyde HR Law do for my company?

Leaves of absence are a live political issue in Ontario and Canada and are subject to frequent changes. The lawyers at Hyde HR Law are experts in leaves of absence and other employment standards. We draft leave of absence policies tailored to our client's specific business needs; we advise our clients in instances of employee absenteeism; and we help our clients develop policies and procedures that keep their workforce productive while protecting them from liability. Contact us today.

Contact a Leave of Absence Lawyer Today!

The employment lawyers at Hyde HR Law are Leave of Absence experts. We have successfully resolved countless Leave of Absence matters for our clients. Don't wait until it's too late! Contact Hyde HR Law today.