Compassionate Care: A New Basis for Temporary Unpaid Leave from Work

. . . provisions for eight weeks of unpaid compassionate care leave for individuals charged with caring for terminally ill family members. This Bill would help to ensure that Albertans do not have to risk employment and careers while performing their familial duties.

– Mr. Jeneroux, on introduction of Bill 203, the Employment Standards Compassionate Care Leave Amendment Act, 2012, in the Alberta legislature (Hansard)

Introduction

We say that work-life balance is important to us. According to the Canadian Mental Health Association, 58% of Canadians report feeling overloaded when trying to balance pressures of work, home and social life. They are looking for work that emphasizes and allows for this work-life balance.

Work-life balance is sometimes achieved by obtaining leave from work for annual vacation, parental leave, military leave and other necessary times of domestic pressure. With new “compassionate care” leave provisions brought into force on February 1^st, 2014, (Employment Standards Code, RSA 2000, c E-9, Division 7.2) Alberta joins other Canadian jurisdictions in creating another new minimum legislated leave requirement for employers to follow. Compassionate care leave is job-protected, unpaid leave for up to eight weeks to allow a worker to provide care or support to a seriously ill family member. Compassionate care leave is a welcome respite for those in difficult family situations and employees now have another category of protection with which to balance work-life demands.

This article describes the new compassionate care leave law in Alberta from the perspective of both employers and employees. Alberta’s provisions will also be compared to those in other provinces, and this new compassionate care leave is compared to other forms of leave such as parental leave.

What is Compassionate Care Leave?

Compassionate care leave is job-protected, unpaid leave for up to eight weeks to allow a worker to provide care or support to a seriously ill family member. An employee is entitled to take the leave only once the employee has worked at least 52 consecutive weeks with the employer and is the primary caregiver of the ill family member.

The employee can be part-time or full-time and still meet the requirement of 52 consecutive weeks of employment with the same employer. The eight weeks of leave must be taken within 26 weeks, but can be broken into two different periods. If the leave is taken in two periods then each period must be at least one week long. Normally, an employee is required to provide an employer with two weeks notice prior to beginning the leave, but this will be waived where circumstances justify a shorter period. The family member being cared for must be so “seriously ill” as to be near death. A physician must issue a certificate stating the dependent family member has a medical condition with a significant risk of death within 26 weeks. If the family member does not die within 26 weeks, then an employee can follow the same requirements to get another eight-week leave for the next 26-week period.

Eligible Family Members

The Alberta definition of “family member” is very expansive and includes:

a spouse or common-law partner of the employee;
a child of the employee or of the employee’s spouse or common-law partner;
a parent of the employee or a spouse or common-law partner of the parent;
a sibling or half-sibling;
grandparents of the employee or the employee’s partner;
a parent of the employee’s partner;
the partner of the employee’s grandchild;
the partner of a parent of the employee’s partner;
the partner of a sibling or half-sibling;
a child of the partner of the employee’s parent;
an uncle or aunt of the employee or the employee’s partner;
the partner of the employee’s uncle or aunt;
a nephew or niece of the employee or employee’s partner;
the partner of the employee’s nephew or niece;
a current or former foster parent of the employee or employee’s partner;
a current or former foster child of the employee, and the foster child’s partner;
a current or former ward of the employee or employee’s partner;
a current or former guardian of the employee, and this guardian’s partner;
the adult interdependent partner of the employee and this partner’s child;
the adult interdependent partner of the employee’s parent; and
a person whether or not related to the employee by blood, adoption, marriage or common-law partnership, or by virtue of an adult interdependent relationship, who considers the employee to be like a close relative or whom the employee considers to be like a close relative.

See this illustration (PDF) for a graphical depiction of the expansiveness of who is eligible as a family member.

Qualifying for Compassionate Care Leave

The family member being cared for must be so “seriously ill” as to be near death. A physician must issue a certificate stating the dependent family member has a medical condition with a significant risk of death within 26 weeks. The primary caregiver can change, but only one family member can be a primary caregiver at any given time.The physician must also state on the certificate that this family member requires the care or support of other family members for an employee to be able to take leave. Providing any amount of care or support to an ill family member is insufficient to get compassionate care leave. The employee needs to be the “primary caregiver.” The employee then gives this certificate to the employer prior to beginning the compassionate care leave, except in emergency situations.

The primary caregiver can change, but only one family member can be a primary caregiver at any given time. Sharing compassionate care leave is in the laws of other provinces. For example, New Brunswick’s compassionate care law states that the combined amount of leave taken by two or more employees for the care of the same person cannot exceed eight weeks.

Returning to Work

An employee’s compassionate care leave ends after eight weeks or at the death of the seriously ill family member, whichever comes first. An employee should give the employer at least two weeks written notice of returning to work, although employers can postpone the return to work for another four weeks in writing. The employer can return the employee to the original job, or provide the employee with alternative work of a comparable nature with no reduction in compensation. In some cases, a different job or title might mean a lot to the employee, who expected to return to the same position.

Comparing Alberta’s Compassionate Care Leave

Alberta is the last province or territory in Canada to introduce compassionate care legislation to guarantee job-protected leave for employees. Compared with other provinces, Alberta is the only jurisdiction to require 52 weeks of continuous employment prior to being eligible for leave. Most other provinces require no length of employment to be eligible. The provisions were largely introduced to complement federal compassionate care benefits paid under the Employment Insurance program. Federal statistics show that approximately 500 Albertans per year received EI benefits on compassionate care grounds over the last five years. Despite many similarities between the two programs, one may be eligible for provincial compassionate care leave and not for federal compassionate care benefits, and vice-versa.

Compared with other provinces, Alberta is the only jurisdiction to require 52 weeks of continuous employment prior to being eligible for leave. Most other provinces require no length of employment to be eligible. The longest period after Alberta is three months, in Nova Scotia and Quebec. Alberta’s requirements of two weeks notice prior to taking leave is more stringent compared to provinces such as British Columbia where no advance notice is required, but the Alberta rules are also flexible. Any employer in Canada can at any time voluntarily extend more than these legislated minimums.

See this Chart (PDF) for a more detailed comparison of the laws of compassionate care leave across the country.

Compassionate Care and Other Leaves in Alberta

Other leaves under Alberta’s Employment Standards Code include maternity leave, parental leave, and reservist leave. Similar to compassionate care leave, these other three leaves all allow for employees to get their previous (or equivalent) jobs back when they return to work.

For maternity leave a pregnant woman also needs 52 consecutive weeks of work, similar to compassionate care leave. Maternity leave requires at least six weeks notice prior to leave, triple that of compassionate care leave. A medical certificate attesting to the pregnancy is not required unless requested by the employer. The leave allows for up to 15 weeks and must begin during the 12 weeks prior to the estimated delivery date.

Parental leave requirements are similar to maternity leave. A working parent of a newborn needs to have had 52 consecutive weeks of work with an employer, and needs to provide six weeks notice with some exceptions. Parental leave extends to 37 weeks within a 52-week period after the child’s birth or adoption.

Reservist leave is for working Canadian Forces military reservists deployed to a military operation. The reservist needs to have logged at least 26 consecutive weeks of employment and an employer can request proof of the reservist call, but this is optional, unlike the medical certificate for compassionate care.

These other leaves grant much more leave time, and do so on less proof of eligibility. Alberta is the only province in Canada not to have bereavement leave which can be taken after the death of a family member.