Client Update: New Forms of Unpaid Leave under Newfoundland and Labrador Labour Standards Act
What’s new?
Our employer clients will be familiar with the Labour Standards Act, which sets out the employment standards applicable in Newfoundland and Labrador. Two amendments were made to the legislation this week, both of which came into effect on December 10, 2013. These establish new categories of unpaid leave from employment for an employee:
- Whose child has disappeared or died as a result of a crime.
- Whose child is critically ill.
How does an employee qualify for these leaves and how much leave is available?
If an employee has been working with the employer for at least 30 days, they may take an unpaid leave of absence for:
- Up to 104 weeks if an employee’s child has died, or up to 52 weeks if the employee’s child has disappeared, and it is probable in the circumstances that the death or disappearance was the result of a crime. There is an exception to this rule if the employee is the person charged with the crime.
- Up to 37 weeks of unpaid leave to the employee parent or guardian of a child who is critically ill (as certified by a physician).
Employer obligations during and after the leave
During these new leaves, the employer is prohibited from dismissing the employee for reasons relating to the leave. If the employee is terminated during the leave, the employer bears a higher responsibility to demonstrate that it was unrelated to the unpaid leave. Employers must provide equivalent, or better, terms and conditions of employment upon the employee’s return to work.
Can the new leaves be combined with other leaves?
These new forms of employee leave are in addition to previously existing compassionate care leave, which provides for up to eight weeks of unpaid leave where a family member is terminally ill and has a significant risk of death in the short term. The death of an employee’s child will likely also entitle that person to bereavement leave in accordance with the other relevant provisions of the Act.
What can an employer require from an employee asking for leave?
The employee is required to provide two weeks’ notice of his or her intent to take leave, unless there is a valid reason why that notice cannot be given. Employers may also seek verification that the employee is entitled to leave. In the case of critical illness leave, the Act expressly contemplates a physician’s certification of the need for, and duration of, the leave. The total length of the new types of unpaid leave is always limited to what is “reasonably necessary in the circumstances”.
What does “reasonably necessary in the circumstances” mean?
The new provisions require employers to make judgment calls as to what is reasonable, or where the employee is entitled to leave. For instance, trial and conviction for a violent crime that may have resulted in a child’s death will usually not take place for some time after the death or disappearance itself. However, if a criminal investigation results and/or if charges are laid in connection with a child’s death or disappearance, an employee may well be entitled to take unpaid leave.
The foregoing is intended for general information only. We are always available to assist you in the event that one of your employees makes a request for leave under these, or any, provisions of the Act.
Archive
Jennifer Taylor and Bhreagh Ross The Nova Scotia Court of Appeal has overturned a decision that found a Charter right to testamentary freedom. Nova Scotia (Attorney General) v Lawen Estate¹ involved an appeal by…
Read MoreWe are pleased to introduce our new labour and employment podcast, Workplace Issues in Atlantic Canada: A Legal Perspective. In this series, our labour and employment lawyers across the region will discuss hot topics affecting…
Read MoreRick Dunlop and William Wojcik On May 12th, 2021, the Government of Nova Scotia announced in a news release that it is implementing a COVID-19 Paid Sick Leave Program (“Program”) to support workers who must…
Read MoreBrendan Sheridan As Canada begins its economic recovery from the COVID-19 pandemic, immigration is playing an important role. While much of the focus has been on increasing the skilled workforce to fill gaps in the…
Read MoreBrian Johnston, QC, Killian McParland and Bhreagh Ross On April 6, 2021, Stewart McKelvey was advised by the Federal Labour Program that the Labour Program’s Forward Regulatory Plan 2021–23 (“Plan”) is now available and includes details and timing on 21…
Read MoreMark Tector and Bhreagh Ross With vaccine rollout well underway across the country, employers should be aware of legislative changes that entitle employees to paid or unpaid time-off to receive the COVID-19 vaccine. Here are…
Read MoreJennifer Taylor and Bhreagh Ross In the recent Reference re Greenhouse Gas Pollution Pricing Act (“GGPPA Reference”), the judges of the Supreme Court of Canada unanimously agreed that climate change is real and dangerous.…
Read MoreWe are pleased to present the fifth installment of Beyond the border, a publication aimed at providing the latest information to clients about new programs and other immigration-related information that may be pertinent to employers of…
Read MoreRichard Jordan Is a worker under a contract “of” service or contract “for” service? The former means a worker is an employee whereas the latter means a worker is an independent contractor. The answer to…
Read MoreKevin Landry and William Wojcik In September 2020 the Supreme Court of Canada heard Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, a case featuring appeals from Ontario, Saskatchewan, and Alberta with respect to…
Read More