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Critical Illness or Injury Leave - Act Part 6, Section 52.11

Last updated on April 1, 2021

Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information

Summary

This section explains the circumstances in which an employee is entitled to take critical illness or injury leave, the length of the leave, and the definition of "family member". 

Text of Legislation

52.11  (1) In this section, "family member" means

(a) a member of an employee's immediate family, and

(b) any other individual who is a member of a prescribed class.

(2) An employee who requests leave under this section is entitled to the following unpaid leave to provide care or support to a family member if a medical practitioner or nurse practitioner issues a certificate in accordance with subsection (4):

(a) up to 36 weeks of unpaid leave to provide care or support to a family member who is under 19 years of age at the start of the leave;

(b) up to 16 weeks of unpaid leave to provide care or support to a family member who is 19 years of age or older.

(3) If a certificate issued in accordance with subsection (4), with respect to a leave under this section, sets out a period for which a family member of an employee requires care or support that is less than the maximum number of weeks specified in subsection (2) (a) or (b), as applicable, the employee

(a) is entitled to take the leave only up to the number of weeks indicated in the certificate, and

(b) may, respecting the leave, obtain one or more additional certificates in accordance with subsection (4), but the employee's entitlement to the leave does not exceed the maximum number of weeks specified in subsection (2) (a) or (b), as applicable.

(4) A certificate referred to in subsection (2) must

(a) state that the baseline state of health of the family member has significantly changed and the life of the family member is at risk as a result of an illness or injury,

(b) state that the care or support required by the family member can be met by one or more persons who are not medical professionals, and

(c) set out the period for which the family member requires care or support.

(5) The employee must give the employer a copy of the certificate referred to in subsection (2) as soon as practicable.

(6) An employee may begin a leave under this section respecting a family member no earlier than the earlier of the following:

(a) the first day of the week in which the certificate referred to in subsection (2) respecting the family member is issued;

(b) the first day of the week in which the baseline state of health of the family member significantly changes and the life of the family member is at risk as a result of an illness or injury.

(7) A leave under this section ends on the last day of the week in which the earlier of the following occurs:

(a) the family member in respect of whom the leave is taken dies;

(b) the expiration of 52 weeks from the date the leave began.

(8) A leave taken under this section must be taken in units of one or more weeks.

(9) If an employee takes a leave under this section and, at the time referred to in subsection (7) (b), the life of the family member remains at risk as a result of the illness or injury, the employee may take a further leave after obtaining a new certificate in accordance with subsection (4), and subsections (5) to (8) apply to the further leave.

Policy Interpretation

All employees are entitled to unpaid leave to care for a family member whose health has significantly changed due to critical illness or injury, with the result that the life of the family member is at risk. The leave entitlement is 36 weeks within 52 weeks to care for a family member under the age of 19, and 16 weeks within 52 weeks for a family member who is 19 years of age or older.

The right to critical illness and injury leave under this Part is available to all eligible employees regardless of how long they have been employed. The leave is a statutory entitlement, not something that may or may not be granted at the discretion of the employer.

An employee must, as soon as practicable, provide the employer with a certificate from a medical practitioner or nurse practitioner stating that the family member’s health has significantly changed and the life of the family member is at risk as a result of the illness or injury. The certificate must also state that the care or support required by the family member can be met by someone who is not a health professional and it must set out the time period required.

The certificate can be for less time than the full leave entitlement. If the employee takes a shorter leave than allowed, the employee may obtain a new certificate. The employee is entitled to take different periods of leave within 52 weeks of the first day leave is taken.

The leave ends on the last day of the week that the family member dies, after the maximum amount of leave is taken or 52 weeks after the leave begins.

If the life of the family member remains at risk 52 weeks after the first leave began, the employee may take another leave.

Subsection (1)

"Family member" means a member of the employee's immediate family or a member of a prescribed class as set out in the Family Member Regulation.

“Immediate family” is defined in section 1 of the Act. It means the spouse, child, parent, guardian, sibling, grandchild or grandparent of an employee, and any person who lives with an employee as a member of the employee's family. It includes common-law spouses, step-parents and step-children, and same-sex partners and their children as long as they live with the employee as a member of the employee's family.

The Family Member Regulation contains a list of individuals who are part of the prescribed class referred to in s. 52.11 (1) (b). They are as follows:

In relation to an employee:

  • a step-sibling;
  • an aunt or uncle;
  • a niece or nephew;
  • a current or former foster parent;
  • a current or former foster child;
  • a current or former ward;
  • a current or former guardian; or
  • the spouse of
    • a sibling or step-sibling;
    • a child or stepchild;
    • a parent:
    • a grandparent;
    • a grandchild;
    • an aunt or uncle;
    • a niece or nephew;
    • a current or former foster child; or
    • a current or former guardian;

In relation to the employee’s spouse:

  • a step-parent;
  • a sibling or step-sibling;
  • a grandparent;
  • a grandchild;
  • an aunt or uncle;
  • a niece or nephew;
  • a current or former foster parent; or
  • a current or former ward; and

This also includes an individual with a serious medical condition who is like a close relative to the employee, whether or not they are related by blood, adoption, marriage or common law partnership.

Subsection (2)

An employee who requests leave is entitled to 36 weeks of unpaid leave to provide care and support to a family member under the age of 19, or 16 weeks of unpaid leave for a family member 19 years of age or older. The legislation does not specify how the leave should be requested. There is no requirement for a request to be in writing, or for the employee to give the employer advance notice.

The employee must provide a certificate from a medical practitioner or nurse practitioner as set out in subsection 4.

Subsection (3)

If a certificate is issued for a time period that is less than 36 weeks for a child or 16 weeks for a person 19 or older, the employee may only take the leave allowed under the certificate, but may get another certificate. The employee may continue to get more certificates, as long as the total length of the leave is not more than the number of weeks allowed.

Subsection (4)

The certificate must set out that the baseline health of the family member has significantly changed and the life of the family member is at risk. The certificate must also state that the care or support needed by the family member can be provided by people who are not medical professionals and set out the length of time the care or support is needed.

Subsection (5)

The employee must give the employer a copy of the certificate as soon as practicable. This section contemplates that the need for a leave of this nature can arise suddenly and without warning, so the employee is not disentitled from taking the leave because of the lack of a certificate. The employee still must provide the certificate as soon as is reasonable under the circumstances.

Subsection (6)

The leave starts when the employee requests it, either before or after the certificate is issued. The leave starts on the first day of the week that the certificate is issued, or the first day of the week in which the family member’s health changes and their life becomes at risk as a result of the critical illness or injury.

Subsection (7)

A leave ends on the last day of the week in which the family member dies, or at the end of 52 from when the leave began, whichever comes first.

Subsection (8)

A leave in this section must be taken in units of one or more weeks. The employee is entitled to take the leave when it is needed, but if less than a week is taken at one time it counts as one week under this section. If an employee takes a leave that uses up the end of one week and the beginning of the next, the employee will be considered to have used up two weeks of leave.

Subsection (9)

If the employee takes a leave and the family member remains at risk 52 week after the leave began, the employee may take a further leave after obtaining a new certificate. The leave would be requested and taken under the same conditions as the first leave.

Terms and Conditions of Employment Protected

Section 54 provides that an employer cannot terminate an employee or change a condition of employment without the employee's written consent as a result of a leave under this Part. See also section 56 for an explanation of the effects of leave under this Part on employment and benefit payments. If the employer's business operations have been suspended or discontinued at the time the employee's leave ends, the employer must comply with s.54(2) when operations resume.

In the event of a contravention under this Part of the Act, the director may order a remedy in a determination under s. 79(2). The determination will include an escalating monetary penalty, subject to s.98.

Employees Covered by a Collective Agreement

Where there is a collective agreement, disputes respecting the application, interpretation or operation of Part 6 must be resolved through the grievance procedure, not through the enforcement provisions of the Act.

Related Information

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