An unfortunate part of life is dealing with the passing of family members. Thankfully in Ontario, the law allows employees to take time off during that difficult time. Yet, there are limits to when an employee is entitled to bereavement leave and how much time they are eligible to be absent from work.
The Employment Standards Act, 2000 (ESA) provides in section 50.0.2(1) that employees are entitled to two days of unpaid bereavement leave each year. To receive that entitlement, the employee must have been with the employer for more than two consecutive weeks. Even employees who begin partway through the calendar year have access to two bereavement days. However, employees cannot carry over unused bereavement days to the following calendar year.
Notably, the employee is entitled to bereavement leave right regardless of whether they are employed on a full-time or part-time basis and regardless of the type of employment contract in Toronto they have.
Family Members Covered for Bereavement Leave:
Only the death of the following family members will allow an employee to access the ESA unpaid bereavement leave benefit:
- A spouse;
- A parent, stepparent or foster parent of an employee or employee’s spouse;
- A child, stepchild or foster child or the employee or the employee’s spouse;
- A grandparent, step-grandparent, grandchild, or step-grandchild of the employee or of the employee’s spouse;
- The spouse of a child of the employee;
- The employee’s sibling; or
- The relative of the employee who is dependent on the employee for care or assistance.
Importantly, the death of a niece, nephew, aunt, or uncle is not covered by the ESA. Therefore, if one of those individuals passes away, the ESA does not provide the employee with job-protected bereavement days.
Employment Contract vs Employment Standards Act:
If the employee has an employment contract which stipulates a greater right or benefit than what is provided in the ESA, then the terms of the contract apply instead of the minimum standard. On the other hand, if the employment contract does not provide a greater right or benefit, then the ESA entitlement for bereavement leave applies.
For example, if an employment contract provides one bereavement day per year, this is a lesser right than what is provided by the ESA. This means that the employee is still eligible to take two job-protected bereavement days per calendar year.
Notice Requirements:
There is a requirement for an employee to provide the employer with notice of bereavement leave. However, this is not always possible. For example, a sudden death may not give the employee enough time to inform the employer about the leave. In such instances, the employee must do its best to inform the employer as soon as possible after starting their bereavement leave.
The notice also does not need to be in writing. Oral notice is sufficient (i.e., a phone call, in-person conversation, etc.).
Proof of Entitlement:
An employee may be asked to provide evidence that is “reasonable in the circumstances” of their eligibility for bereavement leave. The following list includes examples of what is considered sufficient evidence:
- Death certificate
- Notification from a funeral home
- Obituary
- Copy of the program from a memorial service
- Communication from a legal office setting up an appointment to discuss estate matters
What is considered reasonable in the circumstances will also depend on the context of the situation. How long is the employee expected to be gone? Is there a pattern of absences? Is there any evidence available? How expensive would it be for the employee to obtain the necessary evidence?
Rights During Bereavement Leave
Employees who are on bereavement leave have the same rights as other employees on pregnancy or parental leave. This means they cannot be terminated, threatened, or penalized in any way while on bereavement.
Federally Regulated Employees Working in Ontario:
If you are a federal employee, you are not covered by the ESA. Instead, you receive protection from the Canada Labour Code (CLC). Under the CLC, an employee is entitled to a leave of up to 10 days which is considerably more than what an employee under the ESA is entitled to. Of those 10 days, 3 of them are paid, unlike the ESA-regulated employee bereavement leave.