By Donovan Plomp
McCarthy Tetrault
In Canada, employees are entitled to certain government-provided benefits under the federal Employment Insurance Act, including “compassionate care benefits.”
The introduction of these benefits in January 2004 prompted almost all provinces and territories to introduce job-protected compassionate care leave in their respective minimum employment standards laws.
Employers in Canada must grant this leave in accordance with applicable provincial or federal law. In this Q&A, we provide answers to some of the more commonly asked questions about compassionate care leave and benefits.
Q. What are “compassionate care benefits”?
A. Money paid under the Employment Insurance Act to qualifying employees. Employees may qualify if absent from work to provide care or support to a gravely ill family member who is at risk of dying within 26 weeks. Unemployed persons receiving other employment insurance benefits can also ask for these types of benefits.
Q. When are compassionate care benefits available?
A. Following a two-week waiting period, up to six weeks’ of compassionate care benefits may be paid to an employee if a medical doctor (or certain other qualified medical practitioner) has issued a certificate stating that the employee’s family member has a serious medical condition with a significant risk of death within 26 weeks.
Q. Who is considered a “family member”?
A. A “family member” includes the employee’s spouse or common-law partner, a child or the child of the employee’s spouse or common-law partner, a parent or the parent of the employee’s spouse or common-law partner, and certain other persons listed in the definition of “family member.” The full definition can be found online at:
www1.servicecanada.gc.ca/en/ei/types/compassionate_care.shtml
Q. How does an employee become eligible to receive compassionate care benefits?
A. An employee must demonstrate that his or her regular weekly earnings have decreased by more than 40% and that he or she has accumulated 600 insured hours in the last 52 weeks or since the start of the employee’s last claim.
Q. If an employee qualifies for compassionate care benefits, is the employer required to permit the employee to take a job-protected leave of absence?
A. Most Canadian employers are obligated to provide compassionate care leave to their employees in accordance with applicable minimum employment standards laws. For example, federally regulated employers, who are subject to the provisions of the Canada Labour Code, must provide job-protected leave. The Code provides eight weeks of compassionate care leave (reflecting the two-week waiting period and six weeks’ compassionate care employment insurance benefits) to employees. The eligibility requirements for compassionate care leave in the Code essentially mirror the eligibility requirements for employment insurance compassionate care benefits.
Q. Have any provinces or territories passed compassionate care leave legislation?
A. British Columbia, Saskatchewan, Manitoba, Ontario, Nova Scotia, New Brunswick, Prince Edward Island, Newfoundland & Labrador, Yukon Territory, and Nunavut have all passed legislation providing eligible employees with job-protected compassionate care leave on terms similar but not identical to the Canada Labour Code. Quebec’s Labour Standards Act already contained more generous family sick leave provisions, permitting eligible employees to take up to 12 weeks of unpaid job-protected leave. If a Quebec employee’s minor child has a serious and potentially mortal illness, such leave can be extended up to 104 weeks.
Q. Is the compassionate care leave legislation passed by these provinces and territories the same?
A. No. While the compassionate care leave legislation passed by the provinces and territories identified above is generally similar, there are significant differences between these jurisdictions in relation to matters such as eligibility qualifications, notice requirements, and the obligations imposed on employers.
Q. What if an employer already provides paid or unpaid leave to an employee who takes time off to care for a seriously ill family member?
A. Employers should review their leave policies to see if they differ from the applicable legislation. For instance, an employer may want to ensure that the terms of its leave policy do not permit employees to take both compassionate care leave under the applicable legislation and leave under the employer’s policy. If the policy provides paid leave, the employer may want to revise the policy to ensure that employees remain eligible to receive employment insurance compassionate care benefits.