Leave of Absence: Legislation

Since life is inherently unpredictable, there may come a time when you'll need to take a short or long-term leave from work in order to deal with a personal situation. Here is a brief overview of the legislation concerning leaves of absence in Canada and the United States, and the types of benefits for which you may be eligible.

Canada

Sick Leave for Personal Illness/Injury

Under the Canada Labour Code, to be eligible for sick leave, an employee must have worked for at least three consecutive months before their leave, and be able to provide a medical certificate.

Employees are entitled to 12 weeks of sick leave without risk of demotion or dismissal. An exception is allowed if the employee is unable to perform her/his previous duties after an absence due to illness or injury. In that case, the employer can assign the employee to a different position, with different terms and conditions of employment.

Employees who are temporarily unable to work due to sickness, injury, or quarantine may qualify for up to up to 15 weeks of sickness benefits which are payable through Employment Insurance (EI). To be eligible, the employee must have worked for at least 600 hours during the last 52 weeks, demonstrate that their regular weekly earnings have decreased by more than 40%, and provide a medical certificate indicating how long their illness is expected to last. EI benefits generally cover 55% of a person's average insured earnings, up to a maximum of $413 per week. This income is taxable.

Workers' compensation is another possible source of income during an employee's absence. The Canada Labour Code states that "every employer shall subscribe to a plan that provides an employee who is absent from work due to work-related illness or injury with wage replacement." The specific rate of compensation depends on the employee's province or territory of residence.

Disability

Employees who have a physical and/or mental disability that is "severe and prolonged," or likely to result in death, may qualify for disability benefits through the Canada Pension Plan (CPP). In general, eligible employees must be under 65 years of age, have left their jobs due to the disability, have earned a minimum annual salary while working (currently $4,200 or more), and have paid into their CPP for at least four of the past six years. However, there are certain exceptions which may allow employees to receive benefits even if they do not meet all of the above criteria.

The amount of CPP disability benefits is 75% of a person's calculated retirement pension plus a flat rate. In 2005, the average monthly amount of CPP disability benefit received was $749, and the maximum allowed was $1,010. CPP disability benefits are taxable. The person's dependent children (children under the age of 18 and full-time students between the ages of 18 and 25) are also eligible for monthly benefits.

Maternity and Parental Leave

New birth or adoptive mothers (not fathers/spouses) can receive up to 15 weeks of maternity benefits through EI. Maternity benefits may be collected up to eight weeks before the baby's expected due date. To qualify, the woman must have worked for at least 600 hours in the past 52 weeks.

Following the maternity leave period, either the new mother or her spouse or common-law spouse (common-law spouses are defined as partners who have lived in a conjugal relationship for at least one year) can claim parental benefits through EI for a combined maximum of 35 weeks. For a parent to be eligible for this benefit, s/he must have worked for at least 600 hours in the past 52 weeks. Combining maternity and parental benefits gives new mothers up to 50 weeks of subsidized leave. In the unfortunate event that a new child is hospitalized, a parent can extend his or her parental benefits up to a maximum of 104 weeks with proof of hospitalization.

All of these benefits are taxable. Mothers who work while receiving maternity benefits will have their earnings deducted dollar for dollar from their benefits. However, employees receiving parental benefits can earn $50 per week or 25% of their weekly benefits, whichever is higher, before having their benefits deducted.

Some employers, especially federal agencies, also offer "top-ups," so that employees can receive 60-100% of their regular pay while on parental leave. Employees can take maternal or parental leave without risk of dismissal or demotion.

Family Leave

Need to drive your child to the dentist or deal with a family emergency during work hours? In most cases, you'll need to dip into your vacation days or sick leave, or rely on your boss's soft heart. Only Quebec and British Columbia have specific legislation for family leave, which allows employees five days of unpaid leave a year to attend to the needs of a child or other immediate family member.

Bereavement Leave

The Canada Labour Code permits bereavement leave in the event of the death of a member of one's immediate family, on any of one's normal working days that occur during the three days immediately following the day of the death. To be eligible for this leave to be paid leave, one must have completed three consecutive months of continuous employment.

Compassionate Care

Employees who take time off from work in order "to provide care or support to a gravely ill family member at risk of dying within 26 weeks" may receive compassionate care benefits, which offer EI payments for a maximum of six weeks. To qualify, the employee must have worked for at least 600 hours in the 52 weeks prior to their leave, and to show that their earnings have decreased by more than 40%.

For compassionate care purposes, the definition of "family member" is extremely loose, and can include just about everyone, including the employee's spouse or common-law spouse, children, parents, siblings, nieces and nephews, aunts and uncles, step-relatives, wards, and more.

Although employees who quit their jobs are usually not eligible for regular EI benefits, an exception may be made if someone is forced to leave their job in order to perform compassionate care duties.

Other Types of Leave

Employers must give workers time off for court appearances, jury duty, and voting. Some employers also offer short-term leaves in the event of marriage and other special situations. For more information, contact your local Human Resources and Social Development Canada office.

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United States

Under the Family and Medical Leave Act (FMLA) of 1993, eligible employees are entitled to 12 weeks of unpaid leave per 12-month period for any of the following reasons:

There are three main eligibility criteria for FMLA. First, the employee must have been employed for at least 12 months. Second, the employee must have worked for at least 1,250 hours during the 12-month period before their leave. Third, only employers who have 50 or more employees working within 75 miles (121 kilometers) of the same worksite are covered under FMLA.

Paid maternity leave is offered by some employers, but many parents use a combination of other types of leave (e.g. short-term disability, sick leave, vacation time, personal leave days) in order to care for their new child. According to a briefing paper released by the US Center for Economic Policy and Research, 28.5% of female employees received paid maternity leave, 18.4% received a different type of paid leave, 25.9% took an unpaid maternity leave, 24.3% quit, 2.0% were let go, and 1.8% did not stop working. The authors of the paper urged for greater access to maternity and other types of leave, and more flexibility in the workplace to allow employees to balance their work and family responsibilities.

Many employers offer group benefit programs, such as disability plans, flexible spending accounts, and long-term care plans, which may provide a source of income while an employee is on leave. Employees can also choose to draw money from their retirement plans, although there is a 10% IRS penalty for withdrawals if the person is under 59.5 years of age.

Employees who are unable to return to work may be eligible for state unemployment insurance. Eligibility criteria, benefit amounts, and the length of time for which benefits are paid vary from state to state.

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In addition to the legislation mentioned above, your workplace may have its own policies regarding employee leaves and benefits. Many employers are also willing to negotiate leaves on a case-by-case basis. Best of luck!

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See our next article: Leave of Absence: Tips & Advice

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