Written By Carl Cunningham, Talia K. Bregman and Tyler W. Henderson

On November 28, 2017, Ontario’s Bill 148, the Fair Workplaces, Better Jobs Act, 2017, received royal assent. What this means is that major changes are on the horizon for all provincially-regulated workplaces in Ontario.

More specifically, in addition to amending Ontario’s Labour Relations Act and Ontario’s Occupational Health and Safety Act, Bill 148 will amend Ontario’s Employment Standards Act, 2000 (ESA), which establishes the minimum rights and obligations of provincially-regulated employees and employers in Ontario. These minimums cannot be contracted out of. Accordingly, Ontario employers are urged to take note of these changes to ensure they remain in compliance with the law.

Due to the significance of these changes, we will be delivering a series blog posts that will provide a practical overview of the upcoming changes to the ESA. This blog post, the first in the series, summarizes the changes to the ESA’s leaves of absence.

Changes to Ontario’s Statutory Leaves of Absence

A statutory leave of absence can be understood as an employee’s right to take job-protected time off work in certain situations. As of today’s date, there are nine leaves under the ESA. Bill 148 will modify seven of them. It will also introduce a new type of leave.

As of December 3, 2017

Leave	Old Rules	New Rules
Parental Leave Leave to take care of an employee’s child (once born or after the child first comes into the employee’s care)	For employees who take pregnancy leave: up to 35 weeks, unpaid For all other employees: up to 37 weeks, unpaid	For employees who take pregnancy leave: up to 61 weeks, unpaid For all other employees: up to 63 weeks, unpaid
Critical Illness Leave Leave to support a critically ill child or adult who is a family member	Formerly called “critically ill child care leave” and limited to taking up to 37 weeks, unpaid, to care for a minor child who is a family member	Scope of this leave is expanded to enable an employee to take leave to care for a critically ill minor child (up to 37 weeks, unpaid, in a 52-week period) or adult (up to 17 weeks, unpaid, in a 52-week period) who is a family member

As of January 1, 2018

Leave	Old Rules	New Rules
Personal Emergency Leave Leave of up to 10 days per calendar year to deal with a personal emergency	Only available to an employee if the employer has at least 50 employees All 10 days are unpaid Employer can require an employee to provide a medical note in support of a request for this leave	Available to all employees, regardless of the size of the workplace 2 out of the 10 days must be paid Employer can require “reasonable evidence” of a need to take this leave but can no longer require a medical note
Family Medical Leave Leave to care for family members who have a serious medical condition with a significant risk of dying within 26 weeks	Up to 8 weeks, unpaid, in a 26-week period	Up 28 weeks, unpaid, in a 52-week period
Crime-Related Child Disappearance Leave Leave following the disappearance of an employee’s child, where disappearance is probably due to a crime	Up to 52 weeks, unpaid	Up to 104 weeks, unpaid
Child Death Leave Leave following the death of an employee’s child	Up to 104 weeks, unpaid Limited to a child’s death as a result of a crime	Up to 104 weeks, unpaid Available if a child dies, regardless of the reason
Pregnancy Loss Leave Available to female employees who have suffered a miscarriage or stillbirth	Up to 6 weeks, unpaid	Up to 12 weeks, unpaid
Domestic or Sexual Violence Leave Leave to (1) seek medical attention, (2) obtain services from a victim services organization, (3) obtain professional counselling or (4) seek legal assistance, if an employee or an employee’s child experiences domestic or sexual violence or the threat of domestic or sexual violence	N/A	New type of leave Up to 10 days (the first 5 of which must be paid), plus up to 15 weeks, unpaid, per calendar year

Practical Implications for Ontario Employers

To be compliant with the new changes to the ESA’s leave of absence provisions, provincially-regulated employers in Ontario should take steps to:

• review and update workplace policies, handbooks and employment agreement templates to reflect these new leave entitlements;
• train managers and HR personnel about the new laws and how they will impact the workplace, including when medical notes supporting a leave can and cannot be required;
• develop a procedure to track the number of days of leave taken, especially personal emergency leave days and domestic and sexual violence leave days, to ensure that the first two and five days, respectively, are paid. This procedure may then serve as evidence of an employer’s compliance with the minimum requirements under the ESA, if such compliance is ever called into question; and
• ensure the wording of workplace policies that provide employees with paid days off work (e.g., paid sick days), which amount to a greater right or benefit than the statutory leaves under the ESA, are updated to reduce the likelihood that employees can stack statutory entitlements on top of other paid days provided by the employer.

Next up in our series is an overview of the changes affecting compensation. Stay tuned.