The rights of employers and employees
The current version of Ontario’s Employment Standards Act (ESA) introduced a number of significant changes. Of greatest interest to the general public were the expansion of pregnancy and parental leaves and the introduction of emergency leave.
Most employees appreciate the increased entitlement to leaves, and particularly the possibility of one parent spending a full year with a new child. Employers, however, were left to deal with what many perceived to be an increased burden.
Regardless of the merits of these changes, it is important for everyone to know exactly what the act requires, and what their corresponding rights and obligations are. Failure to abide by them can lead to breaches of both the ESA and the Human Rights Code
The different types of leave:
There are basically three types of leave that are of interest to employers and employees in the ESA: pregnancy, parental and emergency leave.
Pregnancy leave
The ESA provides that pregnant employees can take pregnancy leave unless their due date is less than 13 weeks after they commenced employment. This prevents women from going to work for a company and almost immediately going off on leave, forcing the company to replace them, continue their benefits and virtually guarantee their job when they return.
Women are entitled to start pregnancy leave up to 17 weeks prior to their due date. They must provide their employer with at least two weeks’ notice and provide a doctor’s certificate stating their due date if the employer requests one. The employee may change the start date of her leave by providing notice of her intention.
Pregnancy leave ends 17 weeks after it began, if the employee is entitled to take parental leave. If she is not then the pregnancy leave ends on the later of the date 17 weeks after the leave began or six weeks after birth (including still-birth or miscarriage). If she wants to end her leave and return to work early, she must provide her employer with four weeks’ notice. Similarly if the employee does not intend to return to work, she must give her employer four weeks’ notice.
Parental leave
A parent, as defined in the ESA, is entitled to take parental leave if she has been employed for at least 13 weeks. The leave can begin any time up to 52 weeks after the day the child is born or comes into the employee’s care for the first time (in the case of adoption). In other words, if a father wants to take parental leave, he does not have to start the leave immediately after the mother’s pregnancy leave ends.
If the same parent intends to take pregnancy and parental leave, however, the leaves must follow one after the other unless the child has not yet come into her custody or care.
Like pregnancy leave, employees wishing to take parental leave must give two weeks’ notice. In most cases it would be both prudent and considerate to provide significantly more notice. Parental leave lasts up to 37 weeks, or 35 weeks if it is taken by the same person that took pregnancy leave. Employees can return earlier, or choose not to return at all, so long as they provide four weeks’ notice.
Emergency leave
While some collective agreements have provided various forms of emergency leave or personal days, Ontario’s employment legislation did not previously provide such rights. The new version of the ESA, however, provides employees with the ability to take days off in order to deal with personal emergencies.
Emergency leave is only available to those working for companies with 50 or more employees.
Workers in smaller organizations are not entitled to emergency leave under the ESA; they are free, however, to negotiate such an arrangement with their employer.
The ESA provides for emergency leave of up to 10 days per year for personal or family emergencies, including the illness or injury of the employee, the injury, illness or death of a family member or an urgent matter involving such a person.
Rights during and after leave
Most people know about the various types of leave. Problems can arise, however, when they do not fully understand them. The ESA sets out, in detail, the rights and obligations of both employers and employees. They are significant.
An employee on leave is entitled to continue participating in every benefit plan in which she is entitled to participate while actively employed. This includes medical and dental plans, pension plans and life insurance. Furthermore the employer must continue to make its regular contributions to such plans unless the employee advises they do not intend to continue their own contributions (if they are required to make any).
An employee on leave does not forfeit any vacation entitlement. She is entitled to defer vacation until the leave ends, or later if the employer agrees. Alternatively the employee is entitled to forgo her vacation and receive vacation pay instead.
The fact an employee has taken leave cannot negatively affect her length of employment, length of service or seniority. An employee that works for two years and then takes a year of leave is considered to have three years of service, employment and seniority. But the time on leave does not count toward completion of a probationary period.
An employer must pay the employee returning from leave the greater of her most recent salary or what her salary would have been had she worked and not taken leave.
Perhaps the most important right the ESA provides to employees is the right to be returned to the position held prior to the leave. With some very limited exceptions, employees must be put back where they were. Viewed in tandem with the rights to continued seniority, length of service and salary, this provision essentially puts the employee exactly where she would have been had she not taken leave at all.
The right to reinstatement is one of the most misunderstood employee rights. Many employers simply do not understand their obligations. Some think they need only return an employee to “a position” or “any position.” Others think they can find a similar position so long as the salary is not reduced.
Section 53 of the ESA, however, provides that:
The employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not. (emphasis added)
This often creates difficulties for employers. In some cases the time in which the employee has been on leave has been an eye-opener for them. Employers may now realize the job in question can be done faster and better. They may realize they, or their clients, prefer to deal with the individual hired to replace the employee on leave. For one reason or another, they often reach the conclusion they would prefer to have the replacement continue in the position rather than the employee scheduled to return from leave.
Usually this is when I get the call from the employer. The question, however it is phrased, boils down to, “Do I have to put the employee on leave back in exactly the same position that they left?” Variations include, “What if I put them in a similar position and keep their salary the same?” Or the slightly more sophisticated, “What if we ‘reorganize’ so the position no longer exists?”
The simple rule is if the position still exists, the returning employee must be returned to it. If it legitimately no longer exists, then they must be put in a comparable position. If no comparable position exists, then the right to reinstatement may no longer apply. But the legitimacy of such a claim will be thoroughly examined if a complaint is raised by the employee. Simply renaming the position will not be sufficient.
I should note the right to reinstatement does not apply if the employment relationship is terminated entirely for reasons unrelated to leave. An employer is not precluded from terminating an individual’s employment, even if they are on leave, due to a legitimate reorganization or downsizing. It is no longer the law that an employee on leave is entitled to reinstatement even if her job has been eliminated for valid reasons —an employee on leave is not entitled to be in a better position than one that was working.
The test, essentially, is whether the employee would have lost her job if she had not gone on leave. If the employer only discovers the reason to terminate because the employee was on leave, then it cannot refuse to bring her back. If the employer realizes the employee on leave was inefficient because the replacement is far more efficient, then the employee on leave cannot be dismissed — the employer would not have known but for the leave. While this may seem unreasonable, the act is designed to protect employees from any negative repercussion arising out of their decision to take leave.
Somewhat coincidentally, I was recently consulted on this very issue by two clients. Both initial consultations took place on the same day; one client was an employer, the other an employee (fortunately, they were not on opposite sides of the same fence). The employer had an employee scheduled to return from parental leave in about a month. But it had suffered significant financial difficulties and the employee’s position no longer existed. In fact, no positions did. All of the work was being done by a group of three owners. They could not afford to pay any employees. In that case, my opinion was they did not have to bring the employee back. But they would have to provide notice of termination in accordance with the ESA and the common law.
In the other case my client was told by her employer, six weeks before she was to return from leave, that her position had been eliminated. But my client knew the person hired to replace her was still there.
Furthermore, in speaking with friends still employed by the company, she knew her replacement was still performing essentially the same tasks, although her title had been changed. In this case my opinion was the employer was obligated to return the employee to her previous position.
Employees in Ontario have more significant entitlement to leave than they have in the past. Both employees and their employers should be aware of these rights, and their related obligations. As usual, it is best to consult an employment lawyer whenever you are unsure. It is a small cost relative to a claim for breach of the Employment Standards Act and the Human Rights Code.
This in-depth look at leaves of absence was provided by Stuart Rudner. Rudner practices civil litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or via email at [email protected].
Most employees appreciate the increased entitlement to leaves, and particularly the possibility of one parent spending a full year with a new child. Employers, however, were left to deal with what many perceived to be an increased burden.
Regardless of the merits of these changes, it is important for everyone to know exactly what the act requires, and what their corresponding rights and obligations are. Failure to abide by them can lead to breaches of both the ESA and the Human Rights Code
The different types of leave:
There are basically three types of leave that are of interest to employers and employees in the ESA: pregnancy, parental and emergency leave.
Pregnancy leave
The ESA provides that pregnant employees can take pregnancy leave unless their due date is less than 13 weeks after they commenced employment. This prevents women from going to work for a company and almost immediately going off on leave, forcing the company to replace them, continue their benefits and virtually guarantee their job when they return.
Women are entitled to start pregnancy leave up to 17 weeks prior to their due date. They must provide their employer with at least two weeks’ notice and provide a doctor’s certificate stating their due date if the employer requests one. The employee may change the start date of her leave by providing notice of her intention.
Pregnancy leave ends 17 weeks after it began, if the employee is entitled to take parental leave. If she is not then the pregnancy leave ends on the later of the date 17 weeks after the leave began or six weeks after birth (including still-birth or miscarriage). If she wants to end her leave and return to work early, she must provide her employer with four weeks’ notice. Similarly if the employee does not intend to return to work, she must give her employer four weeks’ notice.
Parental leave
A parent, as defined in the ESA, is entitled to take parental leave if she has been employed for at least 13 weeks. The leave can begin any time up to 52 weeks after the day the child is born or comes into the employee’s care for the first time (in the case of adoption). In other words, if a father wants to take parental leave, he does not have to start the leave immediately after the mother’s pregnancy leave ends.
If the same parent intends to take pregnancy and parental leave, however, the leaves must follow one after the other unless the child has not yet come into her custody or care.
Like pregnancy leave, employees wishing to take parental leave must give two weeks’ notice. In most cases it would be both prudent and considerate to provide significantly more notice. Parental leave lasts up to 37 weeks, or 35 weeks if it is taken by the same person that took pregnancy leave. Employees can return earlier, or choose not to return at all, so long as they provide four weeks’ notice.
Emergency leave
While some collective agreements have provided various forms of emergency leave or personal days, Ontario’s employment legislation did not previously provide such rights. The new version of the ESA, however, provides employees with the ability to take days off in order to deal with personal emergencies.
Emergency leave is only available to those working for companies with 50 or more employees.
Workers in smaller organizations are not entitled to emergency leave under the ESA; they are free, however, to negotiate such an arrangement with their employer.
The ESA provides for emergency leave of up to 10 days per year for personal or family emergencies, including the illness or injury of the employee, the injury, illness or death of a family member or an urgent matter involving such a person.
Rights during and after leave
Most people know about the various types of leave. Problems can arise, however, when they do not fully understand them. The ESA sets out, in detail, the rights and obligations of both employers and employees. They are significant.
An employee on leave is entitled to continue participating in every benefit plan in which she is entitled to participate while actively employed. This includes medical and dental plans, pension plans and life insurance. Furthermore the employer must continue to make its regular contributions to such plans unless the employee advises they do not intend to continue their own contributions (if they are required to make any).
An employee on leave does not forfeit any vacation entitlement. She is entitled to defer vacation until the leave ends, or later if the employer agrees. Alternatively the employee is entitled to forgo her vacation and receive vacation pay instead.
The fact an employee has taken leave cannot negatively affect her length of employment, length of service or seniority. An employee that works for two years and then takes a year of leave is considered to have three years of service, employment and seniority. But the time on leave does not count toward completion of a probationary period.
An employer must pay the employee returning from leave the greater of her most recent salary or what her salary would have been had she worked and not taken leave.
Perhaps the most important right the ESA provides to employees is the right to be returned to the position held prior to the leave. With some very limited exceptions, employees must be put back where they were. Viewed in tandem with the rights to continued seniority, length of service and salary, this provision essentially puts the employee exactly where she would have been had she not taken leave at all.
The right to reinstatement is one of the most misunderstood employee rights. Many employers simply do not understand their obligations. Some think they need only return an employee to “a position” or “any position.” Others think they can find a similar position so long as the salary is not reduced.
Section 53 of the ESA, however, provides that:
The employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not. (emphasis added)
This often creates difficulties for employers. In some cases the time in which the employee has been on leave has been an eye-opener for them. Employers may now realize the job in question can be done faster and better. They may realize they, or their clients, prefer to deal with the individual hired to replace the employee on leave. For one reason or another, they often reach the conclusion they would prefer to have the replacement continue in the position rather than the employee scheduled to return from leave.
Usually this is when I get the call from the employer. The question, however it is phrased, boils down to, “Do I have to put the employee on leave back in exactly the same position that they left?” Variations include, “What if I put them in a similar position and keep their salary the same?” Or the slightly more sophisticated, “What if we ‘reorganize’
The simple rule is if the position still exists, the returning employee must be returned to it. If it legitimately no longer exists, then they must be put in a comparable position. If no comparable position exists, then the right to reinstatement may no longer apply. But the legitimacy of such a claim will be thoroughly examined if a complaint is raised by the employee. Simply renaming the position will not be sufficient.
I should note the right to reinstatement does not apply if the employment relationship is terminated entirely for reasons unrelated to leave. An employer is not precluded from terminating an individual’s employment, even if they are on leave, due to a legitimate reorganization or downsizing. It is no longer the law that an employee on leave is entitled to reinstatement even if her job has been eliminated for valid reasons —an employee on leave is not entitled to be in a better position than one that was working.
The test, essentially, is whether the employee would have lost her job if she had not gone on leave. If the employer only discovers the reason to terminate because the employee was on leave, then it cannot refuse to bring her back. If the employer realizes the employee on leave was inefficient because the replacement is far more efficient, then the employee on leave cannot be dismissed — the employer would not have known but for the leave. While this may seem unreasonable, the act is designed to protect employees from any negative repercussion arising out of their decision to take leave.
Somewhat coincidentally, I was recently consulted on this very issue by two clients. Both initial consultations took place on the same day; one client was an employer, the other an employee (fortunately, they were not on opposite sides of the same fence). The employer had an employee scheduled to return from parental leave in about a month. But it had suffered significant financial difficulties and the employee’s position no longer existed. In fact, no positions did. All of the work was being done by a group of three owners. They could not afford to pay any employees. In that case, my opinion was they did not have to bring the employee back. But they would have to provide notice of termination in accordance with the ESA and the common law.
In the other case my client was told by her employer, six weeks before she was to return from leave, that her position had been eliminated. But my client knew the person hired to replace her was still there.
Furthermore, in speaking with friends still employed by the company, she knew her replacement was still performing essentially the same tasks, although her title had been changed. In this case my opinion was the employer was obligated to return the employee to her previous position.
Employees in Ontario have more significant entitlement to leave than they have in the past. Both employees and their employers should be aware of these rights, and their related obligations. As usual, it is best to consult an employment lawyer whenever you are unsure. It is a small cost relative to a claim for breach of the Employment Standards Act and the Human Rights Code.
This in-depth look at leaves of absence was provided by Stuart Rudner. Rudner practices civil litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or via email at [email protected].
