Caring for a critically ill family member can be an emotionally taxing and stressful experience. Canadian law recognizes the inherent difficulties in balancing an employee's desire to care for an ill family member and their obligation to attend work as required. To this end, the law permits certain employees to take a protected leave from work during which the employee should not be terminated provided certain statutory conditions are met.
Section 206.4 of the Canada Labour Code (“CLA”) permits federally regulated employees to take a compassionate care leave for a period of up to 8 weeks to care for a critically ill family member. The leave is available if the employee provides a certificate signed by a qualified medical practitioner stating that the family member has a serious medical condition with a significant risk of death. Employees with children that are critically ill may qualify for a leave of up to 37 weeks. During a compassionate care leave or a leave taken to care for a critically ill child, an employee cannot be terminated for time away from work.
Section 49 of the Employment Standards Act (“ESA”) allows provincially regulated employees in Ontario to take a Family Medical Leave which may be taken to care for an ill family member. Under the ESA, an employee may be entitled to a leave of up to 8 weeks if the employee provides the employer with a certificate analogous as the one required under the CLA. Provided that the employee complies with the statutory requirements to obtain their leave, an employer may not terminate an employee for time away from the workplace as a result of caring for a critically ill family member.
As the law stands, employees are permitted to take a family illness leave, but only if a family member has a medical condition with a “significant risk of death”. However, it would appear that at least in Ontario, the fairly stringent requirement may be relaxed in the very near future.
Bill 21, Employment Standards Amendment Act (Leaves to Help Families) received its third reading in the Ontario legislature in December 2013. As it appears to have multiparty support, it is expected that the bill will be proclaimed into law in 2014. The amendments that would be caused by this bill would allow employees to take a leave to care for family members with chronic or episodic medical conditions rather than only if there is a significant risk of death.
In addition the statutory protections, an employee is entitled to equal treatment in the workplace and not to be discriminated against on the basis of family status. Under the Ontario Human Rights Code, employers cannot discriminate in hiring, benefits, work conditions, or termination of employment because an employee is caring for a family member. An employer has a positive duty to reasonably accommodate needs related to family status. Depending on the circumstances, an employer may be required to provide flexible scheduling, permit leaves of absence or provide alternative work arrangements to ensure that the family and work needs of an employee are balanced. Where an employee feels that they have been terminated or discriminated against as a result of caring for a critically ill family member, the employee can file a human rights complaint which may assist the employee to obtain any of a wide range of remedies including monetary compensation.
In most cases, an employee can care for an ill family member without losing their job. The law provides a range of statutory protections to employees who struggle with the balance between caring for an ill family member and fulfilling their work demands. Both employers and employees should be aware of and ensure (through legal advice and their actions) that they meet the requirements placed on them by the employment and human rights laws when an employee needs to assist an ill family member.