New leaves for PEI workers subjected to violence in their personal lives

On Nov. 1, 2019 employees on Prince Edward Island will be entitled to up to three days leave with pay and an additional seven days leave without pay if an employee, their minor child or a person for whom an employee is a primary caregiver of is a victim of domestic violence, intimate partner violence or sexual violence.

These changes are a result of amendments to the Employment Standards Act and the enactment of the Domestic Violence, Intimate Partner Violence and Sexual Violence Leave Regulations (Regulations).

It is important to note that these changes do not apply to employees whose terms and conditions of work are established by a collective agreement pursuant to Prince Edward Island’s Labour Act.

What is domestic violence, intimate partner violence or sexual violence?

“Domestic violence” is defined under the Regulations to mean violence committed against a victim by a person who, in relation to an employee:

• is or has been married to the employee or is residing or has resided with the employee in an intimate relationship
• is or has been in a dating relationship with the employee, regardless of whether they have lived together at any time
• is the biological or adoptive parent of one or more children with the employee, regardless of their marital status or whether they have lived together at any time
• is related to the employee by blood, marriage or adoption regardless of whether they have lived together at any time
• resides with the employee and has care or custody of the employee.

“Intimate partner violence” is defined to mean violence committed against a victim by an intimate partner. By extension, “intimate partner” means a person with whom an employee is or was in a current or former dating relationship, a current or former common law relationship or a current or former marriage, and includes a current or former sexual partner and a person who, together with the employee, is the parent of one or more children, regardless of their marital status or whether they have lived together at any time.

Lastly, “sexual violence” means any sexual act or act that targets a victim’s sexuality, gender identity or gender expression, whether physical or psychological in nature, that is committed, threatened or attempted against a victim without the victim’s consent, and includes, but is not limited to, sexual assault, sexual harassment, stalking, indecent exposure, voyeurism and sexual exploitation.

In general, “violence” is defined under the Regulations to include:

• an assault on the victim, but does not include an act committed in self-defence
• a reckless act or omission that causes injury to the victim or damage to property
• an act or threat that causes a reasonable fear of injury to the victim or damage to property (includes electronic communications)
• forced confinement of the victim
• actions or threats of sexual abuse, physical abuse or emotional abuse of the victim (includes electronic communications)
• depriving a victim of food, clothing, medical attention, shelter, transportation or other necessities of life
• a series of acts that collectively cause the victim to fear for safety, including following, contacting, communicating with, observing or recording any person (includes electronic communications)
• an act by a person solicited to do so by a domestic partner or intimate partner which, if done by the domestic partner or intimate partner, would constitute domestic violence or intimate partner violence (incudes electronic communications).

Availability of leave

An employee must be employed by an employer for a continuous period of three months or more in order to request domestic violence, intimate partner violence or sexual violence leave. The employee may choose to take the paid and unpaid leave intermittently or in one continuous period, during a 12- month calendar period.

Under the Regulations, domestic violence, intimate partner violence or sexual violence leave may be taken for one of the following purposes:

• to seek medical attention for a victim with respect to physical or psychological injury or disability caused by domestic violence, intimate partner violence or sexual violence
• to obtain services from a victim services organization
• to obtain psychological or other professional counselling for a matter related to or arising from domestic violence, intimate partner violence or sexual violence
• to relocate temporarily or permanently for a reason related to or arising from domestic violence, intimate partner violence or sexual violence
• to seek legal or law enforcement assistance, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic violence, intimate partner violence or sexual violence
• to comply with child protection interventions and participate in child protection case planning or related activities
• for any other purpose related to resulting from the domestic violence, intimate partner violence or sexual violence that requires the attendance of the employee during the employee’s regularly scheduled work day.

When requesting leave, the employee is required to advise the employer of the employee’s intention to take the leave, the commencement date of the leave, and the anticipated duration of the leave.

Written evidence of employee’s need for leave

The employer has the ability under the Regulations to require an employee to provide written evidence respecting the employee’s need for the leave. Written evidence can be provided by any of the following individuals:

• a social worker, as defined in the Social Work Act
• a psychologist or psychological associate, as defined in the Psychologists Act
• a medical practitioner, as defined in the Medical Act
• a registered nurse or nurse practitioner, as defined under the Registered Nurse Regulations under the Regulated Health Professions Act
• a member of the police service, as defined in the Police Act
• a person who provides victim services, pursuant to the Victims of Crime Act
• a community elder, spiritual counsellor or counsellor who is providing culturally specific services to the victim
• a person approved by the employer for the purpose of providing written evidence of the employee’s need for leave.

Confidentiality obligations

The employer is required to maintain confidentiality respecting all matters that come to its knowledge in relation to domestic violence, sexual violence, or intimate partner violence leave taken by an employee. As such, employers shall not disclose information relating to the leave to any person except in the following circumstances:

• an employee or agent of the employer who requires the information to carry out of the person’s duties
• with the consent of the employee to whom the leave relates
• as required under the Child Protection Act
• as required under the Adult Protection Act.

Recommended steps for employers

In order to ensure compliance with the new domestic violence, intimate partner violence and sexual violence leave provisions under the Employment Standards Act and Regulations, it is recommended that employers take the following steps:

• Review your policies: consider implementing a new policy or revising a pre-existing policy in order to address the new employee entitlements to domestic violence, intimate partner violence and sexual violence under the Employment Standards Act and Regulations.
• Education: provide education and training to human resources, management and supervisors on the impact of the new domestic violence, intimate partner violence and sexual violence entitlements and how to appropriately respond to employee’s requesting such leave, having regard to the employer’s confidentiality obligations under the Regulations.

Isabelle Keeler is an associate with Cox & Palmer in Charlottetown practising Employment and Labour law, administrative law, municipal law, health law, estates and trusts, and real estate law. She can be reached at (902) 629-3906 or [email protected].