Ontario Employment Law

Duration of Annual Leave – Employees with less than 5 years of employment are entitled to 2 weeks of annual leave after each 12-month vacation entitlement year. Employees with 5 or more years of employment are entitled to 3 weeks of annual leave.

Scheduling of Annual Leave – For employees whose period of employment is less than five years, employers are required to schedule the annual leave earned each annual leave entitlement year in a block of 2 weeks or in two 1-week blocks.

For employees whose period of employment is five years or more, employers must schedule the annual leave time earned each annual leave entitlement year in a block of:

• • • 3 weeks
    • a 2-week period and a 1-week period, or
    • 3 periods of one week each.

Annual Leave Pay – The Employment Standards Act calculates pay based on the amount of time the employee has worked for the employer :

• • • • For employees with less than five years of employment, annual leave pay must be at least 4% of their gross wages earned in the 12-month annual leave entitlement year or stub period.
      • Annual leave pay for employees with more than five years of employment is 6% of their gross wages in a 12-month or stub period.

“Wages” include the employee’s regular earnings (including commissions), bonuses or gifts that are not discretionary or which are related to hours work, overtime pay, public holiday pay, termination pay, allowances for room and board, and domestic or sexual violence leave pay.

The employer shall pay annual leave pay to the employee in a lump sum before the employee commences the annual leave. In general, the period of time that an employee is away from work because they are taking a leave of absence must be counted towards the employee’s completion of an annual leave entitlement year or stub period.

Annual Leave upon Termination of Employment – When employment ends (for example, when an employee quits or the employment is terminated), an employee is entitled to annual leave pay that they have earned and that has not yet been paid. In some cases, this would include annual leave pay earned during a previous annual leave entitlement year or stub period as well as the annual leave pay earned during a current one.

An employee whose employment is terminated during an annual leave entitlement period and before the 5-year employment threshold will be entitled on termination to annual leave pay of 4% of the wages earned during that last (partially completed) annual leave entitlement period (plus any outstanding vacation pay earned in previously completed vacation entitlement periods).

Deadlines for taking Annual Leave – The annual leave earned for an annual leave entitlement year or a stub period must be taken within 10 months after completing that year or stub period. The employer has the right to schedule annual leave as well as an obligation to ensure the annual leave is scheduled and taken before the end of that 10-month period.

Annual Leave and Public Holiday – A public holiday could fall during an employee’s annual leave period. In that case, the day remains an annual leave day for the employee, and if the employee qualifies for the public holiday, the employee is entitled to one of the following:

• • • • • the employee can have a substitute day off work with public holiday pay. This must be taken within 3 months of the public holiday or, if the employee agrees electronically or in writing, within 12 months of the public holiday; or
        • the employer can pay public holiday pay for that day without giving the employee a substitute day off work if the employee agrees electronically or in writing.

Employees may also agree electronically or in writing to work on a public holiday that falls while they are on annual leave. 

As there is no break in the employment relationship during a period of pregnancy, parental, sick, family responsibility, bereavement, declared emergency, family caregiver, family medical, critical illness, domestic or sexual violence, organ donor, reservist, child death or crime-related child disappearance leave, the time on leave counts toward the completion of a vacation entitlement year or stub period. Employment Standard Act, § 33- 41.1.

Most employees are entitled to an uninterrupted 30-minute eating period after no more than 5 consecutive hours of work. An employer and employee may agree orally, electronically or in writing that the eating period will be split into two periods. If so, these two periods must total at least 30 minutes, and both must be taken within every consecutive five-hour period.

Eating periods are unpaid unless the employee’s employment contract requires payment. Whether the eating period is paid or not, the employee must be free from work during the 30 minutes.

Coffee Breaks

The ESA does not require an employer to provide any breaks in addition to eating periods. However, if the employer does provide another type of a break, such as a coffee break, and the employee must remain at his or her work during the break, this time is considered to be working time under the ESA. Employment Standard Act, § 20.

An employee is entitled to take pregnancy leave of up to 17 weeks of unpaid time off work. In some cases, the leave may be longer.

Eligibility: An employee is eligible for maternity leave, if:

• • • The employee has been employed by an employer who is covered under ESA;
    • employment of the employee was started at least 13 weeks before the due date of delivery.

When leave begins: The earliest a pregnancy leave can begin is 17 weeks before the employee’s due date. However, when an employee has a live birth more than 17 weeks before the due date, she will be able to begin her pregnancy leave on the date of the birth.

The latest pregnancy leave can begin on the baby’s due date. However, if the baby is born earlier than the due date, the latest the leave can begin is the day the baby is born.

Length of pregnancy leave A pregnancy leave can last a maximum of 17 weeks for most employees. However, if an employee has taken a full 17 weeks of leave but is still pregnant, they may continue on the pregnancy leave until the birth of the child. If they have a live birth, the pregnancy leave will end on the date of the birth and then, in most cases, they will be able to commence their parental leave.

Miscarriages and stillbirths: An employee who has a miscarriage or stillbirth more than 17 weeks before their due date is not entitled to a pregnancy leave.

However, if an employee has a miscarriage or stillbirth within the 17-week period preceding the due date, they are eligible for pregnancy leave. The pregnancy leave of an employee who has a miscarriage or stillbirth ends on the date that is later than:

• • • 17 weeks after the leave began;or
    • 12 weeks after the stillbirth or miscarriage

Medical Certificate: An employee shall give their employer at least 2 weeks’ written notice before beginning a pregnancy leave. Also, if the employer requests, the employee must provide a certificate from a medical practitioner (which may include a medical doctor, a midwife or a nurse practitioner) stating the baby’s due date. Employment Standard Act, § 46-47.

An employee who has been in continuous employment with the same employer for at least 13 weeks and is employed by the employer covered under ESA, is entitled to parental leave in the below manner:

• • • • • • • Up to 61 weeks of parental leave, if the employee took a Pregnancy Leave; or
            • Up to 63 weeks of parental leave if the employee did not take a Pregnancy Leave.

Parental leave shall begin no later than 78 weeks after the child is born or when the child comes into custody for the first time (in case of adoption). An employee’s parental leave ends 61 weeks after it began, if the employee also took pregnancy leave and 63 weeks after it began, otherwise.

An employee may end the parental leave earlier than the day set out by giving the employer written notice at least four weeks before the day they wish to end the leave. Employment Standard Act, § 48.

Employees are entitled to up to 10 days of domestic or sexual violence leave every calendar year, whether they are employed on a full- or part-time basis. The 10 days of domestic or sexual violence leave do not have to be taken consecutively.

Additional Entitlement: An employee shall also be entitled to an additional leave of 15 weeks. The 15 weeks can be taken consecutively or separately. A week is defined as running from Sunday to Saturday.

The leave may only be taken for a reason relating to the violence or threat of violence against the employee or the employee’s child, including:

• • • • • • • • Seeking medical attention for a physical or mental injury or disability caused by the violence; and/or
              • Obtaining services from a victim services organization; and/ or
              • Receiving psychological or other professional counseling; and/ or
              • Relocating, either temporarily or permanently; and/or
              • Seeking legal or law enforcement assistance, including participation in a criminal or civil trial.

Eligibility – Employees who have been employed by their employer for at least 13 consecutive weeks are entitled to domestic or sexual violence leave.

Carry Over – Employees cannot carry over unused domestic or sexual violence leave days to the next calendar year. 

Pay –  An employee is entitled to receive their regular rate of pay.  The first 5 days of domestic or sexual violence leave taken in a calendar year must be paid. The rest are unpaid. The first 5 days are to be paid whether the employee takes leave from the 15-week entitlement or the 10-day entitlement.

Notice requirement– An employee is required to inform their employer prior to taking the leave. In case they are unable to give notice, they shall inform the employer as early as possible. An employee who takes a 15-week entitlement is required to give a written notice to the employer.

Certificate: An employer may require an employee to provide evidence reasonable in the circumstances that they are eligible to take domestic or sexual violence leave. Employment Standard Act, § 49.7.

An employee who has been in continuous employment for at least 2 consecutive weeks is entitled to unpaid leave for 2 days in case of death of a family member.

Employees cannot carry over unused bereavement leave days to the next calendar year. If an employment agreement provides a greater right or benefit than the bereavement leave then the terms of the contract apply instead of the standard (ESA).

An employer may require an employee to provide reasonable evidence for taking leave under bereavement leave. It can be in the form of a death certificate, a notification from a funeral home, a published obituary, a copy of a printed program from a memorial service, or communication from a legal office setting up an appointment to discuss estate matters. Employment Standard Act, § 50.0.2.

An employee who has been employed by their employer for at least 13 weeks and undergoes surgery for the purpose of organ donation is entitled to unpaid leave for a prescribed period as may be mentioned in the medical certificate or a maximum of up to 13 weeks of leave. The leave may be extended more than once, but the total extension period shall not exceed 13 weeks.

The employee may extend the leave if a legally qualified medical practitioner issues a certificate stating that the employee is not yet able to perform the duties of their position because of organ donation, and will not be able to work for a specified period of time which shall not exceed maximum 26 weeks.

An employee must provide the employer with at least 2 weeks prior written notice before taking the leave. The employer may ask the employee to provide a medical certificate for the following reasons:

• • • confirming that the employee has undergone or will undergo surgery to donate an organ;
    • when the employee is to begin the leave if it is before the day of the organ donation surgery; and/or
    • to extend a leave for a period of time because the employee is not yet able to perform the duties of their position.

The employee must provide the certificate to the employer as soon as possible after the employer’s request. Employment Standard Act, § 49.2. 

Employees are entitled to 28 weeks of unpaid leave within a 52-week period to provide care or support to a family member if a qualified health practitioner issues a certificate stating that a family member has a serious medical condition with a significant risk of death occurring in 26 weeks or less. The 28 weeks is not required to be taken consecutively. The leave shall begin no earlier than the first day of the week in which 26 week period begins and shall end on the earlier of the following dates – 

• • • • • • • the last day of the week in case of the death of the concerned family member.
            • the last day of the 52-week period starting on the first day of the week, when the period of 26 weeks begins.      

An employee must provide in writing regarding the intention to take leave to their employer. An employee must provide at the request of their employer, a medical certificate as proof.    

Sharing Family Medical Leave – The 28 weeks of family medical leave must be shared by all employees who take a family medical leave to provide care or support to a specified family member. The total of the leaves taken by all the employees for the same individual shall not exceed 28 weeks during the 52-week period.

For example, if one spouse took 18 weeks of family medical leave to care for their dying father, the other spouse would be able to take only 10 weeks of family medical leave. The spouses could take leave at the same time, or at different times.

“Week” is defined for family medical leave purposes as a period of 7 consecutive days beginning on a Sunday and ending on a Saturday. Employment Standard Act, § 49.

An employee who has been in continuous employment for a period of consecutive 6 months is entitled to unpaid leave for 104 weeks if a child of the employee dies. An employee is not entitled to a leave of absence if the employee is charged with a crime in relation to the death of the child or if it is probable, considering the circumstances, that the child was a party to a crime in relation to his or her death. The leave can only be taken in a single period. A leave for the death of a child must be taken within the 105-week period that begins in the week the child died.

The total amount of child death leave taken by one or more employees for the same death (or deaths that are the result of the same event) is 104 weeks. The employees can take the leave at the same time or at different times. The sharing requirement applies whether or not the employees work for the same employer.

An employee must inform the employer in writing that they will be taking a child death leave and must provide the employer with a written plan that indicates the weeks in which they will take the leave.  Employment Standard Act, § 49.5.

The employee will be entitled to the unpaid leave if a child, stepchild, foster child, or child under the legal guardianship of the employee, disappears and it is probable that the child disappeared as a result of a crime.

The following rules apply if an employee takes a leave of absence and the child is found within the 104-week period that begins in the week the child disappears:

• • • • • If the child is found alive, the employee is entitled to remain on leave under this section for 14 days after the child is found.
        • If the child is found dead, the employee’s entitlement to be on leave under this section ends at the end of the week in which the child is found. 

An employee may take a leave only during the 105-week period that begins in the week the child disappears.

The leave can only be taken in a single period and if one or more employees take leave with respect to the same child, the total leave shall not exceed 104 weeks.

An employee must inform the employer in writing that they will be taking a crime-related child disappearance leave and must provide the employer with a written plan that indicates the weeks in which they will take the leave.

An employer may require an employee to provide reasonable evidence for taking leave under crime-related child disappearance. Employment Standard Act, § 49.6.

An employee is entitled to 8 weeks of unpaid family caregiver leave each calendar year. Family caregiver leave may be taken to provide care or support to certain family members in respect of whom a qualified health practitioner has issued a certificate stating that they have a serious medical condition.

For the purposes of an employee’s entitlement, if an employee takes any part of a week as leave, the employer may deem the employee to have taken 1 week of leave. Employment Standard Act, § 49.3.

An employee who has been in continuous employment for at least 2 consecutive weeks is entitled to 3 days of unpaid leave for illness, injury, medical emergency, or any urgent matter which requires concern with respect to the employee’s family members.

If an employee takes any part of a day as leave, the employer may deem the employee to have taken one day of leave on that day. An employee must inform their employer before taking this leave. An employer may require an employee to provide evidence reasonable in the circumstances that the employee is entitled to the leave. Employment Standard Act, § 50.

An employee is eligible to take unpaid critical illness leave only if they have been employed by their employer for at least 6 consecutive months and may take up to 37 weeks of leave within a 52-week period to care for a minor child, or up to 17 weeks of leave within a 52-week period to care for an adult. If the critically ill child or adult dies, while the employee is on such leave, the leave shall also end on the last day of the week in which the ill child or adult dies.

If one or more employees take leave to provide support and care to the same child or adult, as the case may be, the total amount of leave shall not exceed 37 and 17 weeks respectively.

If an employee has begun a leave before informing the employer, the employee shall inform the employer of the leave in writing as soon as possible after it begins.  An employer may require an employee to provide reasonable evidence for taking leave under critical illness leaves. Employment Standard Act, § 49.4.

An employee is eligible for a reservist to leave if they have been employed by the same employer for at least 2 consecutive months unless otherwise prescribed under their employment agreement. Employees who are reservists are entitled to unpaid leave of absence if they will not be performing the duties of their position because of any of these reasons: 

• • • The employee is deployed to a Canadian Forces operation outside or inside  of Canada;
    • The employee is deployed to a Canadian Forces operation inside Canada that is or will be providing assistance in dealing with an emergency or with its consequences;
    • The employee is participating in Canadian Forces military skills training.
    • The employee is in treatment, recovery, or rehabilitation in respect of a physical or mental health illness, injury, or medical emergency that results from participation in an operation or activity

An employee must provide their employer with reasonable advance notice in writing of the day on which they will begin and end the leave. An employer may require an employee to provide reasonable evidence as proof to be eligible for reservist leave.  Employment Standard Act, § 50.2.

An employee is entitled to a leave of absence without pay if the employee will not be performing their duties due to reasons like an emergency declaration, orders related to emergencies, caring for someone in an emergency, or other legally prescribed causes.

Leave of absence with pay:  An employee is entitled to a paid leave of  3 days if the employee will not be performing the duties of the employee’s position because of one or more of the following reasons related to a designated infectious disease:

• • • • • • • The employee is under individual medical investigation, supervision, or treatment related to the designated infectious disease.
            • The employee is in quarantine or isolation or is subject to a control measure,
            • The employee is under a direction given by their employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the designated infectious disease.

 An employee is entitled to take the 3 paid days of leave before any of the unpaid days of leave. If an employee has the option for paid and unpaid leave, they can choose to take certain days or parts of a day as unpaid leave. 

The employee must inform the employer in writing before the pay period ends in which the leave is scheduled. An employee must provide their employer with reasonable advance notice in writing of the day on which they will begin and end the leave. An employer may require an employee to provide reasonable evidence as proof to be eligible for the leave. Employment Standard Act, § 50.1.

An employee is entitled to 3 consecutive hours paid time off from work for purposes of voting. However, an employer is not required to provide such time off from work if the voting hours are outside the working hours of an employee. Ontario’s Municipal Elections Act, 1996.