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.