What Are My Employee Rights in Ontario When Taking a Leave?

Taking a leave from work can be a stressful time for employees. Whether you are dealing with a medical illness, the birth of a child, or a family emergency, it is important to understand your legal rights and protections during this period. This blog post will provide a general overview of your rights as an employee while on leave in Canada.

Common Types of Leave and Your Rights

1. Sick Leave:

   • Entitlement: The amount of sick leave you are entitled to depends on your employer’s policies and applicable employment standards. However, some provinces and territories have mandatory sick leave provisions. For example, in Ontario, most employees have the right to take up to three days of unpaid job-protected leave each calendar year due to a personal illness, injury or medical emergency, as long as they have worked for the employer for at least two consecutive weeks. This is known as sick leave. Special rules apply to some occupations.
   • Job Protection: Generally, employees are entitled to job protection during a short-term sick leave. However, this protection may vary depending on the length of the leave and the employer’s size.

2. Vacation Leave:

   • Entitlement: Vacation leave is typically paid time off earned based on hours worked. The amount of vacation entitlement varies by province. For example, in Ontario, employees with less than five years of employment are entitled to two weeks of vacation time after each 12-month vacation entitlement year. Employees with five or more years of employment are entitled to three weeks of vacation time.
   • Job Protection: Employees are generally entitled to job protection during vacation leave, meaning they are entitled to return to the same (or a substantially similar job) when they return to work.

3. Pregnancy and Parental Leave:

   • Entitlement: In Ontario, pregnant employees have the right to take pregnancy leave of up to 17 weeks of unpaid time off work. In some cases the leave may be longer. Employers do not have to pay wages to someone who is on pregnancy leave. In addition, both new parents have the right to take parental leave of up to 61 or 63 weeks of unpaid time off work.
   • Job Protection: Both parents have significant job protection during parental leave, including the right to return to the same or equivalent position.
   • A new parent is entitled to parental leave whether they are a full-time, part-time, permanent or term contract employee provided that the employee:
     • is employed by an employer that is covered by the Ontario Employment Standards Act, 2000,
       and
     • was employed for at least 13 weeks before commencing the parental leave.

     An employee does not have to actively work in the 13- week period preceding the start of the parental leave. For example, the employee could be on layoff, vacation, sick leave or pregnancy leave for all or part of the 13-week qualifying period and still be entitled to parental leave. The Ontario Employment Standards Act, 2000 only requires the employee to have been employed by the employer for 13 weeks before they may commence a parental leave.

4. Disability Leave:

   • Entitlement: Employees with a temporary or permanent disability may be eligible for disability leave, which is typically covered through a health benefits plan through a third-party insurer, such as Sun Life or Manulife. Alternatively, Employment Insurance (EI) sickness benefits can provide you with up to 26 weeks of financial assistance if you can’t work for medical reasons. You could receive 55% of your earnings up to a maximum of $668 a week.
   • Job Protection: Employees on disability leave typically have job protection, including the right to return to the same or equivalent position upon recovery.

Important Considerations for Employees on Leave

• Communicate with Your Employer: Keep your employer informed about your leave, including the start and expected end date, and provide necessary medical documentation.
• Understand Your Benefits: Determine how your benefits (e.g., health insurance, pension) will be affected during your leave, specifically if they continue throughout your leave of absence from work.
• Know Your Employee Rights: Familiarize yourself with your employment contract and applicable employment standards legislation.
• Document Everything: Keep records of your leave, including correspondence with your employer, medical documentation, and any other relevant information.
• Consider Short-Term Disability Benefits: If eligible, explore short-term disability benefits to supplement your income during a leave.
• Seek Legal Advice: If you have concerns about your rights or are facing difficulties with your employer, consult with an employment lawyer in Toronto.

Returning to Work After Leave

Upon returning to work, employees have the right to be reinstated to their previous position or an equivalent position. If you believe your rights have been violated upon your return, consult with an Ontario employment lawyer to discuss your options.

For instance, under the Ontario Employment Standards Act, 2000, an employer that cannot penalize an employee for taking any job-protected leave of absence from work, and must generally reinstate an employee to the job the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.

Likewise, under the Ontario Human Rights Code, if there has been discrimination or a violation of an employee’s rights, he or she may add the human rights claim to their wrongful dismissal claim, where a potential remedy is job reinstatement.