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Johanmartin Posts: 2
Posted On: 7/24/2024
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Hi everyone,
I'm hoping to get some advice and information about the Family and Medical Leave Act (FMLA). I’ve recently found myself in a situation where I might need to take some extended time off from work due to a serious health condition (or to care for a family member). I’ve heard a bit about FMLA, but I’m not entirely sure how it works or what my rights and responsibilities are under this law.
Here are a few questions I have:
- Who is eligible for FMLA leave?
- How do I apply for FMLA leave, and what documentation do I need?
- What are the key protections and benefits provided by the FMLA?
- How does FMLA affect my job security and benefits while I’m on leave?
- Are there any common challenges or issues I should be aware of when applying for FMLA?
If anyone has personal experiences, tips, or knowledge about navigating FMLA, I’d really appreciate your insights. Thanks in advance for your help!
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Moderator Moderator Posts: 4130
Posted On: 7/30/2024
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Hi there,
Thank you for sharing your question and situation with us. We appreciate out interest in this information.
The provincial government has a guide to the Employment Standards Act, and you may find helpful information in the Family Medical Leave chapter. Family medical leave is unpaid, job-protected leave of up to 28 weeks in a 52-week period.
Family medical leave may be taken to provide care or support to certain family members and people who consider the employee to be like a family member in respect of whom a qualified health practitioner has issued a certificate indicating that they have a serious medical condition with a significant risk of death occurring within a period of 26 weeks. Family caregiver leave is another job-protected leave available under the Employment Standards Act, 2000 (ESA) for employees with certain relatives who have a serious medical condition. One of the main differences between family medical leave and family caregiver leave is that an employee may be eligible for family caregiver leave even if the family member who has a serious medical condition does not have a significant risk of death occurring within a period of 26 weeks. Employees may also be entitled to take critical illness leave to provide care or support to a minor child or adult who is a family member, whose baseline state of health has changed significantly and whose life is at risk from an illness or injury. Critical illness leave may be taken for up to 17 weeks to care for an adult, and up to 37 weeks to care for a minor child.
Note that if an employee has a certificate issued by a qualified health practitioner before January 1, 2018 to support their entitlement to family medical leave, then the rules for family medical leave before January 1, 2018 apply to that employee. What this means is that the employee with a pre-January 1, 2018 certificate would be entitled to take up to 8 weeks of family medical leave within a 26-week period, and would have to wait until that 26-week period was over to potentially become eligible for the 28-week period of leave.
Here is an excerpt from their section on eligibility and EI:
Eligibility:
All employees, whether full-time, part-time, permanent, or term contract, who are covered by the ESA are entitled to family medical leave.
There is no requirement that an employee be employed for a particular length of time, or that the employer employ a specified number of employees in order for the employee to qualify for family medical leave.
Care or support includes, but is not limited to: providing psychological or emotional support; arranging for care by a third party provider; or directly providing or participating in the care of the family member.
The specified family members for whom a family medical leave may be taken are:
- 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
- family medical leave may also be taken for a person who considers the employee to be like a family member. Employees wishing to take a family medical 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 family medical leave.
Employment Insurance
Under the federal Employment Insurance Act, 26 weeks of employment insurance benefits (called "compassionate care benefits") may be paid to EI eligible employees who have to be away from work temporarily to provide care to a family member who has a serious medical condition with a significant risk of death within 26 weeks and who requires care or support from one or more family members. 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 family medical leave provisions of the ESA is not the same as the right to the payment of compassionate care benefits under the federal Employment Insurance Act. An employee may be entitled to family medical leave whether or not they have applied for or is qualified for the compassionate care benefits.
You may find helpful information about this process in the Compassionate Care Benefits section on Settlement.Org. You may also find the StepstoJustice article, Can I get time off work for a family sickness or other crisis? to be helpful.
In terms of Notice and Documentation, here is an excerpt from the Province's Guide to the Employment Standards Act:
Notice:
An employee must inform the employer in writing that they will be taking a family medical leave of absence.
If an employee has to begin a family medical leave before notifying the employer, they must inform the employer in writing as soon as possible after starting the leave.
If the employee does not take the 28-week leave all at once, the employee is required to provide notice to the employer each time the employee begins a new part of the leave.
For example: Boris is going to take 14 weeks of leave from January 30 to May 6, and another 14 weeks from August 28 to December 2. Boris is required to provide written notice to his employer of both periods of leave. He can do this by providing a single written notice that sets out the start dates of both periods of leave, or he can provide two separate notices, at the same or different times.
An employee who does not give notice does not lose their right to a family medical leave.
While an employee is required to tell the employer in advance that they are taking a leave (or, if this is not possible, as soon as possible after starting the leave), the employee will not lose the right to take family medical leave if the employee fails to do so. An employer may discipline an employee who does not properly inform the employer, but only if the reason for the discipline is the failure to properly notify the employer and not in any way because the employee took the leave.
Medical certificate
The employee does not have to have the medical certificate before they 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 family medical leave.
An employer is entitled to ask an employee for a copy of the certificate of the qualified health practitioner to provide proof that they are eligible for a family medical leave. The employee is required to provide the copy as soon as possible after the employer requests it. The certificate must name the family member and state that the family member has a serious medical condition with a significant risk of death occurring within a specified 26-week period. There is no requirement that the notice specify what the medical condition is; it need only state that it is serious and that there is a significant risk of death occurring within a 26-week period.
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.
The employee is responsible for obtaining and paying the costs (if any) of obtaining the certificate. The Ministry of Labour, Immigration, Training and Skills Development cannot assist the employee in obtaining the certificate.
If an employee is applying for Employment Insurance (EI) compassionate care benefits, 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 family medical leave.
Qualified health practitioner
For the purposes of family medical leave, a qualified health practitioner is a person who is qualified to practice medicine under the laws of the jurisdiction in which care or treatment of the family member is being provided. A qualified health practitioner can also be a nurse practitioner (a holder of an extended certificate of registration under the Nursing Act, 1991).
In Ontario, only a medical doctor or a nurse practitioner can issue a certificate. Different types of health practitioners with equivalent qualifications may be able to issue certificates in different jurisdictions - it will depend on the laws of that jurisdiction.
Please note that family medical leave and compassionate care benefits are separate benefits you may be entitled to if you are covered by the Employment Standards Act. Family medical leave is unpaid, job-protected leave of up to 28 weeks in a 52-week period. Compassionate care benefits are a form of employment insurance and an income supplement.
We hope this information is helpful. Please follow up with us if you have any further questions.
Sincerely,
Your Settlement.Org team
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