Q: What are the different types of Protected Leaves in Canada where ESA stipulates that an employer must protect an employee’s job for the duration of the approved leave?
Per employment standards legislation across Canada, there are several types of leaves of absence which employers must provide. For more detailed information please visit: https://www.canada.ca/en/employment-social-development/programs/ei/ei-list.html
- Bereavement Leave: 2-10 days of leave to be taken on the death of an employee’s family member.
- Child Death & Disappearance Leave: 37-104 weeks of leave if an employee’s child disappears or dies due to a crime. Note: Ontario and Quebec leaves apply to all child deaths (i.e., the death need not be related to a crime).
- Compassionate Care Leave: 27-28 weeks of leave to care for a terminally ill family member.
- Critical Illness Leave: 16-17 weeks to care for a critically ill adult family member, or 37-104 weeks to care for a critically ill child. Note: Prince Edward Island only provides leave to care for critically ill children.
- Domestic & Sexual Violence Leave: 10+ days of leave where an employee, or their child/dependent is a victim of domestic or sexual violence. Typically, employees may take leave to seek medical attention, counselling, victim services or legal assistance, or to relocate.
- Jury Duty Leave: Leaves of indeterminate length to act as a juror. Note: Some provinces include this entitlement in separate legislation governing juries.
- Personal Leave: 3-10 days of leave to meet family responsibilities. Note: Federal and Manitoba legislation also permit employees to take this leave to address their own health. Nova Scotia and Saskatchewan do not provide this type of leave.
- Pregnancy & Parental Leave: 16-19 weeks of pregnancy leave, and 59-65 weeks of parental leave to be taken within a specified number of weeks of a child’s birth/adoption. Note: Federal and PEI legislation permit extended leaves in certain circumstances (e.g., the child is hospitalized or has a physical, psychological or emotional condition requiring an additional period of parental care). Quebec provides certain other related leaves (e.g., for medical exams, related health risks caused by the pregnancy).
- Reservist Leave: 18+ months to perform Canadian Forces operations. Note: Several jurisdictions permit reservist leaves for an indefinite period of time.
- Sick Leave: 3 days-26 weeks of leave for employee illness/injury.
Note: Lengths of leaves of absence may vary considerably from one jurisdiction to the next. The ranges set out above represent the shortest and longest periods of each type of leave.
Q: Can my employer ask for Evidence (i.e., A signed Doctor’s note) for my Leave?
Please see chart below by leave type:
| Leave | Maximum Length Per Year (ESA) | Notice Requirements | Can employer ask for evidence? |
| Maternity Leave | 17 weeks | 2 weeks’ written notice | Yes |
| Parental Leave | 61-63 weeks | 2 weeks’ written notice | No |
| Sick Leave | 3 days | Oral or written notice; no timeframes | Yes |
| Family Responsibility Leave | 3 days | Oral or written notice; no timeframes | Yes |
| Family Caregiver Leave | 8 weeks | Written notice, no timeframes | Yes |
| Infectious Disease Emergency Leave | No limit (but government can revoke it) | Oral or written notice; no timeframes | Yes |
| Family Medical Leave | 28 weeks | Written notice, no timeframes | Yes |
| Critical Illness Leave | 17-37 weeks | Written notice, no timeframes; employee must provide timeline for return | Yes |
| Child Death Leave | 104 weeks | Written notice, no timeframes; employee must provide timeline for return | Yes |
| Crime-Related Child Disappearance Leave | 2 weeks (no death)/104 weeks (death) | Written notice, no timeframes; employee must provide timeline for return | Yes |
| Organ-Donor Leave | 13 weeks, and then another 13 week extention | 2 weeks’ written notice | Yes |
| Reservist Leave | Unlimited | 4 weeks’ written notice | Yes |
Q: What is job abandonment?
There is no specific length of time stipulated within the employment legislation that constitutes job abandonment. Some employers may say an employee abandoned their job and has resigned. In this instance, the employer has to prove that the resignation was clear and unequivocal.
Q: What is Family Leave?
Family medical leave is unpaid, job-protected leave of up to 28 weeks in a 52-week period.
Critical illness leave is unpaid job-protected leave of absence of up to 37 weeks in relation to a critically ill minor child, or 17 weeks in relation to a critically ill adult within a 52-week period.
Family Responsibility leave – (this may vary by province so be sure to check your provincial guidelines. In Ontario for example: Employees are entitled to up to three full days of job protected unpaid family responsibility leave every calendar year.
Q: What is Unpaid Maternity Leave?
An employee who becomes pregnant will, upon request, be granted maternity leave without pay for a period beginning before, on or after the termination date of pregnancy, and ending no later than 18 weeks after the termination date of pregnancy. The employee should, whenever possible, request such leave four (4) weeks before the leave is to commence.
An employee who has not commenced maternity leave without pay can elect to use their sick and other leave credits up to and beyond the termination date of pregnancy, subject to the leave provisions of this directive.
In the event of the newborn child’s hospitalization, the period of maternity leave without pay may be extended beyond the normal 18 week period following the date of childbirth. The extension may be equal to that portion of the period of the child’s hospitalization during which the employee was not on maternity leave, to a maximum of 18 weeks. However, the extension cannot go beyond 52 weeks after the termination date of pregnancy.
Periods of maternity leave without pay will not be deducted from the calculation of severance pay if your role in the organization is eliminated prior to your return to work.
Q: What is unpaid Parental Leave?
An employee who has or will have the care and custody of a newborn child or an adopted child, including that of a common-law partner shall, upon request, be granted parental leave without pay for either:
- A single period of up to 37 consecutive weeks in the 52 week period beginning on the date of the child ‘s birth, or the date on which the child comes into the employee’s care (standard period); or
- A single period of up to 63 consecutive weeks in the 78-week period beginning on the date of the child’s birth, or the date on which the child comes into the employee’s care (extended period).
Upon request of an employee and at the discretion of management, the parental leave without pay may be taken in two periods. Where the employee’s child is hospitalized and the employee has not yet proceeded on parental leave without pay, or where the employee has proceeded on parental leave without pay and then returns to work for all or part of the period while the child is hospitalized, the period of parental leave without pay specified in the original leave request may be extended by a period equal to that portion of the period of the child’s hospitalization while the employee was not on parental leave. However, the extension shall end no later than one hundred and four (104) weeks after the day on which the child comes into the employee’s care.
The employee should, whenever possible, request such leave four (4) weeks before the leave is to commence. The Employer may require a birth certificate or proof of adoption of the child. Periods of parental leave without pay will not be deducted from the calculation of severance pay.
Q: What is Maternity and Parental Leave Benefit Top-Up Pay?
An employee who has been granted maternity or parental leave without pay, and who has completed six months of continuous employment before the commencement of the leave without pay, shall receive maternity and/or parental top-up payments on the condition that the employee:
Provides management with proof that they have applied for and are eligible to receive maternity, paternity, parental and/or adoption benefits under the Employment Insurance (Service Canada) or Québec Parental Insurance Plan.
At the employee’s request, a payment will be estimated and advanced to the employee and adjustments will be made once the employee provides proof of receipt of Employment Insurance or Québec Parental Insurance Plan benefits.
The maternity and/or parental top-ups to which an employee is entitled is limited to that provided under the Supplemental Unemployment Benefit Plan and an employee will not be reimbursed for any amounts that they are required to repay pursuant to the Employment Insurance Act or the Québec Parental Insurance Plan.
For Non-Québec Residents:
For each week that the employee receives Employment Insurance Maternity Benefits, an employee is eligible to receive the difference of 100% of their weekly rate of pay less any other monies earned during this period.
Where an employee is subject to a waiting period of one week before receiving Employment Insurance Maternity Benefits, they are eligible to receive a top-up payment of one week at 100% of their weekly rate of pay less any other monies earned during this period.
Where an employee has received the full fifteen (15) weeks of Employment Insurance Maternity Benefits, they are eligible to receive a top-up payment of one week up to 100% of their weekly rate of pay less any other monies earned during this period (such as EI)
Q: What is the general unpaid protected leave policy in Canada?
Eligibility periods vary across Canada. Some provinces, like British Columbia, New Brunswick and Quebec have no eligibility periods for many leaves. Other provinces have relatively short eligibility periods (e.g., Ontario employees are eligible for most leaves of absence after 2 weeks of consecutive employment). Alberta tends to have the longest eligibility period – being 90 days of employment – for all leaves of absence except for COVID-related leaves.
As an eligible employee, you are entitled to up to 5 days of personal leave per calendar year to:
- take care of health obligations for any member of your family or care for them
- take care of obligations related to the education of any family member under age 18
- manage any urgent situation that concerns you or a family member
- attend your citizenship ceremony under the Citizenship Act, or
- manage any other situation prescribed by regulation
You can take this leave over more than 1 period, however your employer may require that each period be at least 1 day.
Your employer may request that you provide supporting documents concerning the reasons for the leave. Your employer may request this up to 15 days after your return to work. You must provide supporting documents if it is possible to obtain and provide them.
Q: What are my rights during and after a leave of absence?
During a leave of absence, most jurisdictions recognize an employee’s right to continuous service. This may include ongoing rights to:
- participate in pension and benefit plans; and accumulate seniority.
Many jurisdictions also stipulate that vacations that fall during a leave of absence may be deferred until the end of the leave.
Employees on a leave are generally protected from dismissal, suspension or layoff for reasons related to the leave. Typically, employees have a right to reinstatement after their leave to their most recent position or a comparable position, with no reduction in wages or other accrued benefits. However, certain provinces, such as Ontario and Quebec, specify in their legislation that an employee’s employment may be ended for reasons unrelated to the leave.
Q: When should I request a leave of absence?
In Canada, employees may request work leaves - time away from their jobs to take care of unusual circumstances and other life events. Typical reasons for leave requests include: pregnancy/maternity, parental responsibilities, family emergencies, illness, bereavement and voting.
A leave of absence is an important document that helps employees when an unexpected situation happens in their personal lives. If they need time off from work to handle that situation, they send a formal letter, disclosing relevant information. For example, If you will be out of work for more than 5 consecutive days for your own personal illness or injury, to take care of a family member, or for a child's birth, adoption, or foster care placement.
Q: Can a leave of absence be denied?
When someone asks for leave which is denied, the failure for the employee to respect the employer's business requirements is recognized as a breach of trust between employer and employee, which is misconduct per se. Summary: Claimant informed employer of his need for a continued leave of absence eight days after his scheduled return to work.
Q: How do I file a leave?
Contact SCB Leave of Absence Team: loa@sterlingcapitalbrokers.com
Q: When should I file a leave?
At least 30 days prior to when leave will begin.
Q: Who should I communicate with regarding my leave?
Your immediate supervisor/manager and human resources department and SCB (loa@sterlingcapitalbrokers.com).
Q: What type of leave may I be eligible for?
Paid Leave entitlements are dependent upon tenure, province of residency/employment, and reason for the leave of absence. The rules surrounding unpaid leaves of absence are important for both employees and employers to understand. You can request leave without pay for personal needs that has no medical requirement but after 30 days your employer is not required to protect your job or position in the company. Generally, there are two types of leave which are very different from each other: job-protected leave and unprotected leave.
Q: Is a doctor’s note required?
An employer may require an employee to provide a medical note from a health practitioner such as a doctor, nurse practitioner or psychologist when the employee is taking the leave because of personal illness, injury or medical emergency if it is “reasonable in the circumstances”. You are not required to share your medical diagnosis with your employer, but your physician or health care provider should stipulate that leave is required for medical reasons.
Q: What happens to my benefits while on leave?
Benefits will continue during the duration of a protected leave of absence under provincial requirements. If an employee exceeds a benefit protected leave, benefits will end. There may be premium costs for a continuation of benefits if the costs for such benefits is paid for by the employee. These premiums can be collected in advance of the leave or at the end of the leave.
Q: Do company holidays count in my LOA (meaning do I get extra days off if there is a company holiday within the time, I'm on leave?)
Company holidays are not paid out and cannot be used for the purpose of extending a leave of absence.
Q: How am I compensated during my leave of absence?
Compensation depends on the type of leave, your state, and tenure. Some leaves can be “unpaid” depending on circumstances. You can request leave without pay for personal needs for either up to 3 months or for more than 3 months but up to one year in Canada.
Q: What happens to my commission while on leave?
Refer to the terms and conditions of your sales plan.
Q: What actions do I need to take prior to returning from leave?
Contact SCB loa@sterlingcapitalbrokers.com to discuss your Return-to-work planning.
Confirm with SCB your return-to-work date, with or without restrictions no later than 5 business days before the scheduled return date. Extension of leave will require manager/hr approval and you may also be required to submit additional medical evidence.
Q: What is the provincial guideline for Maternity/Parental Leaves?
Province to province comparison on maternity and parental leaves across Canada
| Length of continuous employment to be eligible |
Maternity/Pregnancy /Adoptive Leave |
Parental/Child Care Leave | ||
| Earliest start before due date | Length of leave | Length of leave | ||
| Alberta | 90 days | 13 weeks | 16 weeks | 62 weeks |
| British Columbia | N/A | 13 weeks | 17 weeks | 61 weeks for the employee who took maternity leave; 62 weeks for other parents |
| Manitoba | 7 months | 17 weeks | 17 weeks | 63 weeks |
| New Brunswick | N/A | 13 weeks | 17 weeks | 62 weeks; with the amount of combined maternity leave and childcare leave capped at 78 weeks |
| Newfoundland and Labrador | 20 weeks | 17 weeks | 17 weeks | 61 weeks |
| Northwest Territories | 12 months | 17 weeks | 17 weeks | 61 weeks |
| Nova Scotia | N/A | 16 weeks | 16 weeks | 61 weeks for the employee who took pregnancy leave; 77 weeks for other parents |
| Nunavut | 12 months | 17 weeks | 17 weeks | 37 weeks; with the combined amount of pregnancy and parental leave capped at 52 weeks |
| Ontario | 13 weeks before the due date for pregnancy leave; 13 weeks before commencing parental leave | 17 weeks | 17 weeks | 61 weeks for the employee who took pregnancy leave; 63 weeks for other parents |
| Prince Edward Island | 20 weeks | 13 weeks | 17 weeks | 62 weeks; with the combined amount of maternity and parental leave capped at 78 weeks |
| Quebec | N/A | 16 weeks for maternity leave; the week of the child's birth for paternity leave | 18 weeks for maternity leave; 5 weeks for paternity leave | 65 weeks |
| Saskatchewan | 13 weeks | 13 weeks | 19 weeks | 59 weeks for the employee who took maternity or adoption leave; 71 weeks for other parents |
| Yukon | 12 months | N/A | 17 weeks | 63 weeks |