Critical illness leave
On November 27, 2017, the Fair Workplaces, Better Jobs Act became law, resulting in a number of changes to the Employment Standards Act (ESA). This Guide will be updated as the new rules come into force. Read a complete summary of the changes to the ESA.
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.
Critical illness leave may be taken to provide care or support to a critically ill minor child or adult who is a family member of the employee for whom a qualified health practitioner has issued a certificate stating:
- that the minor child is a critically ill minor child, or the adult is a critically ill adult who requires the care or support of one or more family members, and
- sets out the period during which the minor child or adult requires the care or support.
A “minor child” means a child, step-child, foster child or child who is under legal guardianship, and who is under 18 years of age.
An “adult” means a person who is 18 years of age or older.
“Critically ill” means that a person’s baseline state of health has significantly changed and their life is at risk as a result of an illness or injury. It does not include chronic conditions.
A “family member” means:
- the employee’s spouse (including same-sex spouse)
- a parent, step-parent or foster parent of the employee or the employee’s spouse
- a child, step-child or foster child of the employee or the employee’s spouse
- a brother, step-brother, sister, or step-sister of the employee
- a grandparent or step-grandparent of the employee or of the employee’s spouse
- a grandchild or step-grandchild of the employee or of the employee’s spouse
- a brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee
- a son-in-law or daughter-in-law of the employee or of the employee’s spouse
- an uncle or aunt of the employee or of the employee’s spouse
- a nephew or niece of the employee or of the employee’s spouse
- the spouse of the employee’s grandchild, uncle, aunt, nephew or niece
- Critical illness leave may also be taken for a person who considers the employee to be like a family member. Employees wishing to take a critical illness leave for a person in this category must provide their employer, if requested, with a completed copy of the compassionate care benefits attestation form, available from Employment and Social Development Canada, whether or not they are making an application for EI Compassionate Care Benefits or are required to complete the form to obtain such benefits.
The specified family members do not have to live in Ontario in order for the employee to be eligible for critical illness leave.
An employee can take critical illness leave to care to a minor child who is their own child, or a minor child who is a family member from the list above (for example, a nephew, niece or grandchild).
All employees who have been employed by their employer for at least six consecutive months and who are covered by the Employment Standards Act, 2000 (ESA) may be entitled to critical illness leave, whether they are full-time, part-time, permanent or term contract.
Qualified health practitioner
For critical illness leave purposes, a qualified health practitioner is a person who is qualified to practice as a physician, registered nurse, or psychologist under the laws of the jurisdiction in which care or treatment is being provided. In Ontario, this includes psychiatrists and nurse practitioners.
Different types of health practitioners may be able to issue certificates in different jurisdictions; it will depend on the laws of that jurisdiction.
The medical certificate
The employee does not have to have the medical certificate before he or she can start the leave, but a certificate must eventually be obtained. If a certificate is never issued, the employee will not be entitled to the leave. This means that the employee would not be entitled to any of the protections afforded to employees on critical illness leave.
The certificate must:
- name the minor child or adult
- state that the minor child or adult is critically ill or has been critically injured (there is no requirement that the certificate specify what illness or injury the person has; it need only state that the person is critically ill or critically injured)
- state that the minor child or adult requires the care or support of at least one family member, and
- set out the period during which the minor child or adult requires the care or support.
An employer is entitled to ask an employee for a copy of the certificate of the qualified health practitioner to provide proof that he or she is eligible for a critical illness leave. The employee is required to provide the copy as soon as possible after the employer requests it.
The employee may wish to provide the health practitioner with the “Medical certificate to support entitlement to family caregiver leave, family medical leave, and/or critical illness leave” form for him or her to fill out. It is available on the ministry’s website on the employment standards forms page. There is no requirement that the health practitioner use this particular form. Any certificate that states that a minor child is a critically ill or injured minor child or that an adult is a critically ill adult needing the care or support of one or more family members, and indicating the period during which the care or support will be required can be used.
The employee is responsible for obtaining and paying the costs (if any) of obtaining the certificate. The Ministry of Labour cannot assist the employee in obtaining the certificate.
If an employee is applying for Employment Insurance (EI) benefits for caregivers of critically ill minor children or adults who are family members, a copy of the medical certificate submitted to Employment and Social Development Canada may also be used for the purposes of supporting an entitlement to critical illness leave.
Employment Insurance benefits
Family members who take leave from work to provide care or support to a critically ill child may be eligible to receive Employment Insurance (EI) special benefits for caregivers of critically ill minor children who are family members for up to 35 weeks. There is a similar benefit for family members who take leave from work to care to critically ill adults for up to 15 weeks. For information about EI, visit Service Canada’s website, or contact Service Canada’s Employment Insurance Automated Telephone Information Service at 1-800-206-7218.
The right to take time off work under the critical illness leave provisions of the ESA is not the same as the right to the payment of EI benefits under the federal Employment Insurance Act. An employee may be entitled to a critical illness leave whether or not he or she has applied for, or qualified for, the new EI benefits for caregivers of critically ill minor children or adults who are family members.
Interaction between critical illness leave and personal emergency leave, family caregiver leave, family medical leave, and crime-related child death or disappearance leave
Critical illness leave, personal emergency leave, family caregiver leave, family medical leave, and crime-related child death or disappearance leave are different types of leaves. The purposes of the leaves, their length, the individuals with respect to whom they can be taken, and eligibility criteria vary.
See the respective chapters of this guide for more information on each leave.
An employee may be entitled to more than one leave for the same event. Each leave is separate and the right to each leave is independent of any right an employee may have to the other leave(s).
Length and timing of critical illness leave
A critical illness leave taken to care for a minor child can last up to 37 weeks within a 52 week period. A critical illness leave taken to care for an adult can last up to 17 weeks.
If a medical certificate issued by a qualified health practitioner sets out a period during which the person requires care or support of a family member that is less than 37 weeks (in the case of a critically ill minor child) or less than 17 weeks (in the case of a critically ill adult), the employee is entitled to take a leave only for the period set out in the certificate.
If the certificate states that a minor child or adult is critically ill and requires the care or support of one or more family members for a period of 52 weeks or longer, the 37 or 17 weeks of leave may end no later than the last day of the 52-week period that begins on the first day of the week in which that minor child or adult became critically ill. (The employee may, however, be entitled to an “additional” leave at the end of the 52-week period – see the heading “Additional leaves” later in this chapter.)
A “week” is defined as running from Sunday to Saturday.
The weeks in which critical illness leave is taken can be consecutive, or they can be separated.
The employee may take leave for periods less than a full week (for example, single days, at the beginning, middle or end of a week) but if they do, they are considered to have used up one week of their entitlement. If the employee is on leave for two or more periods within the same week (for example, on leave on Monday and Thursday of the same week) only one week of the entitlement is used up.
The employee is entitled to be on leave only when the employee is providing care or support to the critically ill minor child or adult.
The employer cannot require the employee to take an entire week of leave if the employee only wants to take leave for a single day(s), cannot prevent the employee from working prior to taking a single day(s) of leave during a week, and cannot prevent the employee from returning to work after a single day(s) of leave during the week.
Death of a minor child or adult
If a critically ill minor child or adult dies while an employee is on a critical illness leave, the employee’s entitlement to be on leave ends at the end of the week (which is defined as being a Saturday) in which the person dies.
Sharing critical illness leave
The total amount of critical illness leave that may be taken under the ESA by one or more employees in respect of the same minor child who is critically ill is 37 weeks. For a critically ill adult, the same rule applies but the total amount of leave that may be taken is 17 weeks.
For example, a critically ill minor child requires the care or support of a family member for 40 weeks. If one family member took critical illness leave pursuant to the ESA for 35 weeks, the other family member can only take critical illness leave pursuant to the ESA for 2 weeks. The family members could take the leave at the same time or at different times.
A qualified health practitioner might underestimate the period of time a minor child or adult will require the care or support of a family member. If the practitioner estimated the period to be less than 52 weeks but the minor child or adult is still critically ill at the end of the period set out in the certificate, a second medical certificate can be issued to allow an employee to extend their leave.
Mark’s minor child Jason became critically ill on January 1. The certificate issued on January 1 stated that Jason requires the care or support of a family member for four weeks (until January 28). Jason is still critically ill on January 28. Another certificate is issued on January 29, stating that Jason will require care or support of a family member for another three weeks (until February 18). Mark is entitled to four weeks of leave during the period January 1 to January 28 and to a “further” leave of three weeks during the period January 29 to February 1, for a total of seven weeks of leave.
Note, however, that the original leave and the extension(s) cannot be longer than 37 weeks in a 52-week period.
Gail’s minor child Maggie became critically ill on January 1. The certificate issued on January 1 stated that Maggie requires the care or support of a family member for 30 weeks (until July 29). Maggie was still critically ill on July 29. Another certificate was issued on July 30 stating that Maggie will require care or support for another ten weeks (until October 6). Although Gail was entitled to take leave during the 30-week period from January 1 to July 29, and to take a “further” leave during the 10-week period from July 10 to October 6, the total amount of leave she is entitled to is 37 weeks during the 52-week period that began on January 1.
Deljeet’s adult brother Balbir became critically ill on January 1. The certificate issued on January 1 stated that Balbir requires the care or support of a family member for 10 weeks (until March 11). Balbir is still critically ill on March 11. Another certificate was issued on March 12 stating that Balbir will require care or support for another 10 weeks (until May 20). Deljeet can take a further leave during the 10-week period between March 12 and May 20, but she can take no more than seven further weeks and her leave will end on April 29. The total amount of leave Deljeet is entitled to is 17 weeks within the 52-week period running from January 1, the date of the first certificate. She may be eligible for an additional leave after that period is over: see “additional leaves”, below.
Minor child turns 18 while employee is on critical illness leave
Employees do not lose eligibility for critical illness leave if their child turns 18 after starting the leave. If a child turns 18 after a 37 week leave has already been started, the employee would be able to complete the leave and apply for further leave if necessary. However, in order to take additional critical illness leave for a critically ill adult (up to 17 weeks), the employee would need to wait until the end of the 52-week period related to the last 37 week leave taken in relation for a minor child.
Tina’s minor child Cathy became critically ill on January 1, 2017. The certificate issued on January 1 stated that Cathy requires the care or support of a family member until July 1 (26 weeks). Cathy turns 18 on March 1, and is still critically ill on July 1. A second certificate is issued on June 2, stating that Cathy requires care until October 7 (a further 14 weeks). Tina can stay on leave for a total of 37 weeks, so the leave will end on September 16 (after 37 weeks). If Cathy remains critically ill, then Tina can start a new 17 week leave no earlier than January 1, 2018 if a certificate is issued.
If a minor child or adult remains critically ill after the 52-week period has expired, the employee is entitled to take another leave if the requirements for eligibility are met.
A qualified health practitioner issued a certificate on January 1 2017, stating that Frank’s minor child Rooney is critically ill and requires the care or support of a family member for 52 weeks. Frank is entitled to up to 37 weeks of critical illness leave during that 52-week period. Rooney remains critically ill on December 31. Another certificate is issued on January 12018, stating that Rooney remains critically ill and requires the care or support of a family member for another 40 weeks. Frank is entitled to a new, “additional” leave of 37 weeks in the 52-week period starting January 1, 2018.
Notice requirements: Advance notice and written plan
An employee who intends to take critical illness leave must inform the employer in writing that he or she will be taking such leave and provide the employer with a written plan that indicates the weeks in which he or she will take the leave.
If an employee has to begin a critical illness leave before notifying the employer, he or she must inform the employer in writing and provide a written plan as soon as possible after starting the leave.
Change in employee’s plan
An employee may take a leave at a time other than that indicated in their original plan provided to their employer so long as the new dates fall within the dates the ESA allows, and:
- the employee requests permission from the employer to do so in writing and the employer grants permission in writing; or
- the employee provides the employer with reasonable advance notice of the change in writing.
There is no limit on the number of times the employee can change their plan, so long as the requirements described above are met each time.
Rights during and at the end of a critical illness leave
Employers do not have to pay wages when an employee is on critical illness leave.
Employees who take critical illness leave are entitled to the same rights as employees who take pregnancy or parental leave. For example, an employer cannot threaten, fire or penalize in any other way an employee for taking, planning on taking, being eligible or being in a position to become eligible to take a critical illness leave. See “Rights during pregnancy and parental leaves.”