If one of your beloved family members has fallen sick due to the resurgence of Covid-19 cases, you may consider taking a family caregiver leave to provide care or support to them. In this blog, we would like to answer some common questions that employees have raised in connection to this leave.

COVID-19 has made it much more important for employees to understand their rights as it pertains to family caregiver leave. According to The Ontario Caregiver Organization, 35% of the Canadian workforce provide unpaid care to a family member or friend. As a result of COVID-19, there are 22% more caregivers. Of those, 52% say balancing their work and caregiving responsibilities has been made more challenging by the COVID-19 pandemic.

Family Caregiver Leave is available to employees in Ontario pursuant to section 49.3 of the Employment Standards Act, 2000.

Q: What is a Family Caregiver Leave?

Family caregiver leave is an unpaid leave available to employees who needs to take time off to provide care or support to family members who have a serious medical condition. An employee is entitled to a leave of up to eight weeks per year for each specified family member.

It is a job protected leave, which means your employer could not terminate or discipline you for taking this leave.

Family caregiver leave is not the same thing as a family medical leave. Family medical leaves are only available where a family member with a serious medical condition has a significant risk of death occurring within a period of twenty-six weeks.

Q: Am I eligible for Family Caregiver Leave?

All employees covered by the Employment Standards Act, 2000 are entitled to family caregiver leave regardless of whether they work full-time or part-time or are under a permanent or fixed-term contract. There is no requirement for minimum days that you need to have worked to take family caregiver leave.

In order to be eligible for this leave, you need to meet the following two requirements:

a)  A qualified health practitioner has issued a medical certificate, stating that the family member whom you are caring for has a serious medical condition.
b)  The specified family members are:

1.  Your spouse (including a same-sex spouse);
2.  Your brother or sister;
3.  A parent, step parent or foster parent of you or your spouse;
4.  A grandparent or step grandparent of you or your spouse;
5.  A child, step child or foster child of you or your spouse;
6.  A grandchild or step grandchild of you or your spouse;
7.  A spouse of a child of you;
8.  A relative of you who is dependent on you for care or assistance.

Note that family caregiver leaves are not available where the person requiring care is only “like” a family member. Although not available for family caregiving leave, leave taking to care for “like family members” is available elsewhere (i.e., for family medical leave, critical injury leave, and emergency leave: declared emergencies and infectious disease emergencies).

Q: Who is a qualified health practitioner? Can my employer ask for a medical certificate for this leave?

A qualified health practitioner refers to a person who is qualified to practice as a physician, registered nurse or a psychologist under the laws of the jurisdiction in which care or treatment is provided to the individual.

You do not need to have a medical certificate (i.e., a doctor’s note) before you start the leave. However, you should obtain the medical certificate soon after starting the leave.

You are eligible for this leave only if a qualified health practitioner issues a certificate stating that the family member that you are providing care for is in a serious medical condition. Therefore, your employer can ask you for a medical certificate (i.e. doctor’s note) to prove that this is the case. If there is no certificate, you are not entitled to take this leave.

Q: How many days can I have for a Family Caregiver Leave?

You are allowed to take up to eight weeks per year for each specified family member. A “week” is defined as running from Sunday to Saturday. You can take these eight weeks separately or consecutively.

You are allowed to take leave for a period of days in a week, meaning that it is not necessary for you to take the entire week from Sunday to Saturday off. You could, for example, take only Monday and Tuesday off, or Wednesday and Thursday. However, if you take these part days in a week, you are considered to have used up one full week out of your eight-week entitlement.

If you choose to take leave for only single days of the week, your employer is not permitted to then require you to take the rest of the week off as well. Your employer also cannot prevent an employee from working prior to taking a single day of the week off, and cannot prevent an employee from returning to work after taking a single day of the week off.

Q: Do I have to tell my employer in advance before I take a Family Caregiver Leave?

You should inform your employer in writing that you will be taking a family caregiver leave. Where this is not possible, you are allowed to begin a family caregiver leave before notifying your employer. However, you must inform your employer in writing as soon as possible after starting the leave.

If you do not take the eight-week leave all at once, you are required to provide notice to your employer with respect to each part of the leave.

Q: Can I get paid for a Family Caregiver Leave?

This is an unpaid leave. However, you employer could pay you, if it chooses to do so.

However, it should be noted that an employer cannot threaten, fire or penalize you in any form for taking, planning on taking, or being eligible or being in a position to become eligible for a family caregiver leave.

Q: How Does Family Caregiver Leave Compare to Other Forms of Leave?

Of course, family caregiver leave is not the only form of leave available to employees in Ontario. Family caregiver leave provides eight weeks’ leave, whereas family medical leave (s. 49.1 ESA) provides up to 28 weeks’ leave and critical illness leave (s. 49.4 ESA) provides up to 37 weeks’ leave for a minor and up to 17 weeks’ leave for an adult. Whichever leave is appropriate in your circumstances will depend on a number of factors including your relation to the sick person, how sick they are (i.e., the difference between a “serious” medical condition and a “critically ill” person whose life is at risk). In each of these three cases, however, a medical certificate is required.

If you are experiencing any issues in connection to your family caregiver leave, Top Toronto employment lawyer, Stacey Ball can help you determine your legal options. Please call us at 416-921-7997, extension 227.