Apart from obvious human rights protections, each jurisdiction offers various forms of medical leave and a remedy of reinstatement for any violation of these rights, including the right to return to active employment following the completion of the leave period. These provisions, however, offer additional protections to persons seeking to care for ill family members in different contexts.

Canada

The federal code provides for two different protections to those suffering from a medical disability. The distinction is based on whether the disability is work related.

Unpaid Leave

The Code allows for a medical leave of up to 27 weeks due to personal illness or injury. ¹

Paid Leave

There is also an entitlement to paid medical leave. The credit of eligible medical leave days starts after 30 days of employment. As of that moment in time, the employee is entitled to three paid days. One further day is accrued for every successive 30 day period thereafter, to a cap of 10 days per year. Unused medical leave days continue to the following year. If so, the eligibility in this example in year 2 decreases by 1 day the maximum number of sick leave days that may accrue in year 2.

Unpaid medical leave may be allowed for up to 17 weeks.

The Code also provides personal leave up to 5 days per year for family responsibilities and urgent family matters.

The employer is prohibited from taking disciplinary action where the employee has used their eligible sick days or other leave.

Work Related Injury

The employer is similarly prohibited from disciplinary action against an employee who is on medical leave due to a work related injury. The Code allows for an indefinite medical absence in this context.

The employer is required to provide an insurance plan which provides financial benefits the same as the local province allows as workers’ compensation. The employer must accept the employee’s return to work and accommodate any particular work restrictions.

The Ontario Employment Standards Act

Ontario's statute allows for a variety of medical related leaves, including family medical leave, organ donor leave, family caregiver leave, critical illness leave, child death leave, domestic or sexual violence leave, sick leave, family responsibility leave, bereavement leave and emergency leave. The general rule is that the employee must be returned to their position of employment following the conclusion of the leave period. ²

Generally these leave periods are unpaid and require two weeks of employment before the entitlement will be allowed.

Ontario also permits 8 weeks of unpaid leave to care for a family member with a serious medical condition.

Ontario has distinct leave periods for a victim of domestic or sexual violence or to care for a child so afflicted. The period of leave is set at 17 weeks. The first 5 days of the leave are with pay.

Similar Statutes

B.C. allows for 5 paid days of medical leave, presuming 90 days of employment. The statute also provides for 3 unpaid personal illness. Also an employee is entitled to 5 unpaid days for family medical issues.

Alberta permits 5 unpaid days per year for medical absences or for family care responsibilities, presuming 90 days of employment.

Saskatchewan law states 12 days of unpaid sick leave are allowed for personal medical matters or for family care duties.

Manitoba permits 3 unpaid days in a year for personal illness or for family care responsibilities.

Quebec law allows 2 paid leave days to care for a family member, 10 unpaid days to look after the care, health or education of a child, following 3 months of employment.

New Brunswick requires employers to provide 5 unpaid days of leave for health issues and 3 unpaid days for family care, presuming 90 days of employment.

Nova Scotia law mandates 3 unpaid days due to the need to care for a family member or for medical appointments.

P.E.I. allows 3 unpaid days of medical leave and the same for family care issues, given 6 months of employment.

Newfoundland sets the unpaid sick leave days as 7, which may be used also for family care needs, following 30 days of service.

Other Remedies

These provisions are all statutory minimums. This is not the final word on this subject, however, as the common law and human rights statutes will deal with the needed arguments of frustration, adverse treatment due to a medical disability and the duty to accommodate. This issue is considered in detail in the Workplace Human Rights section.

Further, a violation of such a provision could lead to reinstatement, back salary and compensatory damages under the relevant statute or the human rights statute or could also allow for a claim for aggravated and/or punitive damages in a civil claim.

A good example of such a claim is the 2015 decision of the Court of Appeal in Ontario which upheld the trial judge's award of $20,000 for treating the plaintiff adversely following her return from work after a maternity leave. The trial judge had found that the employer showed conduct of reprisal following the return to work. The damage claim was founded in the violation of family status rights under the Human Rights Code. ³

This is apart from the remedy under the relevant statute which allowed the leave.

A review of the principles of the remedy available under such a statute is reviewed in detail here.