The version of Ontario Bill 148 introduced by Premier Wynne and Labour Minister Flynn in June included significant changes to the personal emergency leave ("PEL") entitlement under the current Employment Standards Act, 2000 ("ESA"). It eliminated the 50+ employee eligibility threshold, entitling all employees to 2 paid and 8 unpaid PEL days each calendar year. The reasons for taking PEL days were also expanded so that an employee could take the leave if the employee or any designated family member experienced sexual or domestic violence, or the threat of sexual or domestic violence.
The amended version of Bill 148 that was ordered for Second Reading on September 11th retains all of the original changes to the PEL entitlement, except the inclusion of sexual or domestic violence or the threat of such violence as a ground for taking the leave. However, Bill 148, as amended, introduces a new entitlement to Domestic or Sexual Violence Leave.
Pursuant to the amended version of Bill 148, an employee with at least 13 consecutive weeks of service is entitled to a leave without pay if the employee or a child of the employee experiences domestic or sexual violence, or the threat of domestic or sexual violence, and the leave is taken for any of the following purposes:
- To seek medical attention for the employee or her/his child in respect of a physical or psychological injury or disability caused by the domestic or sexual violence.
- To obtain services from a victim services organization for the employee or her/his child.
- To obtain psychological or other professional counselling for the employee or her/his child.
- To relocate temporarily or permanently.
- To seek legal or law enforcement assistance, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic or sexual violence.
- Such other purposes as may be prescribed
For purposes of this new leave, "child" means a child, step-child, foster child or child who is under legal guardianship, and who is under 18 years of age. Note that the employee is not entitled to the leave if she/he committed the domestic or sexual violence.
If the amended version of Bill 148 is enacted, eligible employees will be entitled to take up to 10 days and up to 15 weeks of unpaid Domestic or Sexual Violence Leave in each calendar year. The 10-day entitlement is deemed to be taken in entire days. Accordingly, if the employee takes any part of a day as leave, the employer may deem the employee to have taken one day of leave on that day. Similarly, as the 15-week entitlement is deemed to be taken in entire weeks the employer may deem the employee to have taken one week of the leave if the employee takes any part of a week as leave.
An employee who wishes to take Domestic or Sexual Violence Leave must so advise the employer, and the employer may require the employee "to provide evidence reasonable in the circumstances" of her/his entitlement to the leave. If circumstances are such that the employee must begin the leave before advising the employer, she/he must advise the employer of the leave as soon as possible after beginning it. The notice must be in writing if the employee is taking any part of the 15-week leave.
The entitlement to unpaid Domestic or Sexual Violence Leave, if enacted, will be in addition to any entitlement an employee may have for Family Medical Leave and Family Caregiver Leave under the current ESA, Child Death Leave and Crime-Related Child Disappearance Leave (new unpaid leaves included in the initial version of Bill 148 and retained in the amended version), and PEL under the amended version of Bill 148.
Bill 148, as amended, was ordered for Second Reading on September 11 and debated for 2 days after that. We expect it will pass Second and Third Reading and receive Royal Assent over the next few weeks, particularly since many of its provisions, are intended to come into effect by January 1, 2018, including those relating to the new Domestic or Sexual Violence Leave.
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