Bereavement Leave in Canada

Click here to read our new 2019 Bereavement Leave Article
I’m so sorry for your loss. I suspect that, if you’ve clicked on this piece it’s because you have recently lost someone. While the amount of comfort I can offer you here is quite limited, I hope that I can give you the information you need to ensure you get the time to grieve and surround yourself with the supportive people in your life.

Bereavement Leave under the Employment Standards Act

Unfortunately, there is no statutory entitlement to paid bereavement leave under the Employment Standards Act (ESA).

However, if you work for an employer who regularly employs 50 or more people, you are entitled to up to 10 days of unpaid personal emergency leave each calendar year. You may use this personal emergency leave as a bereavement leave for the death of an immediate family member including:

  • your spouse
  • your brother or sister
  • you or your spouse’s parent, step-parent or foster parent
  • you or your spouse’s grandparent or step-grandparent
  • you or your spouse’s child, step-child or foster child
  • you or your spouse’s grandchild or step-grandchild
  • your child’s spouse
  • your dependant relative

Though death is usually unpredictable, as with all leaves of absence, you must notify your employer of your intended absence as soon as you can. You should also note that a half-day taken off will count as a whole day of leave.

Evidence to Justify Bereavement Leave - Bereavement Leave in Canada

Evidence To Justify Leave

“evidence reasonable in the circumstances”

A point that sometimes causes confusion is an employer’s right to ask for evidence to justify an employee’s leave. In this regard, the ESA states:

“an employer may require an employee who takes leave under this section to provide evidence reasonable in the circumstances that the employee is entitled to the leave.”

While there is no guidance in the law for as to what exactly reasonable in the circumstances means, as with most pieces of employment legislation, the aim of the law is to balance the rights and interests of both the employer and the employee. What is reasonable will depend on the situation: length of leave requested, frequency of such absences, cost of absence to employer etc. So, for example, there is probably no need to ask an employee for proof of a relative’s death if they are taking a single day off; your employee’s word in this situation should be adequate evidence.

Bereavement Leave under the Canada Labour Code

Unlike employees governed by the ESA, employees under federal jurisdiction are entitled to paid bereavement leave under the Canada Labour Code.

Under the Code, you are entitled to up to three days paid bereavement leave if you have been employed with a company or organization for three consecutive months. If you haven’t been employed this long, you are still entitled to three days’ leave but this time will be unpaid. You are entitled to leave on any working day within the three-day period immediately following your relative’s death.

Bereavement Leave for Family Members - KCY at LAW

Bereavement Leave for Family Members

Family members for whose death you are entitled to take bereavement leave include:

  • your spouse
  • you or your spouse’s parent or this parent’s spouse
  • you or your spouse’s child
  • your brother or sister
  • your grandparent
  • any relative with whom you permanently reside

The three days of leave only apply to regular working days. For example, if your family member dies on Saturday, you would only be entitled to Monday and Tuesday off. Additionally, these leave provisions don’t apply if you are party to a collective agreement.

Bereavement Leave Legal Experts

If you have questions concerning your bereavement leave entitlements then we can help you. Get in touch with the experienced employment law team at KCY at LAW by calling (905) 639-0999 or contact us to find out more.

Ontario Employees’ rights to time off from work

Breaks and time off from work, what are your rights?

Everybody loves time off work. Whether it’s a quick 15 to enjoy a cup of joe or a nice long weekend away at a cottage, you may notice that you are extra productive at work after you’ve had a proper break.

When it comes to the workplace, rest is important for health, happiness, and ultimately, productivity. A well-rested employee is able to give their best. Research has even shown that down time is key to boosting motivation, creativity, concentration and innovation. It helps you to problem solve and process new information. It even improves your immune system.

In short, a well-rested employee is a productive employee. This applies to workers whose labour is physical, mental or emotional.

In Ontario, employees’ rights to time off from work – such as breaks for lunch – are set out in the Employment Standards Act (ESA).

Meal Breaks in Canada

According to the ESA, all employees (with some exceptions) are entitled to one 30-minute break within the first five hours of work. That is, no employee should work more than five hours in a row without a break. Workers also have the option to split this 30-minute break into two 15-minute breaks with the oral agreement of their employer.

Regardless of how an employee chooses to allot their break time, this time must be uninterrupted. They must be completely free from their work duties during their break time.

This 30-minute break time is unpaid. It does not count towards hours of work, overtime or vacation pay. This means that most employees’ work days are actually 8.5 hours in order to achieve a 40-hour work week: eight hours working plus half an hour break each day.

Employees may have additional breaks (often 15-minute ‘coffee breaks’) written into their employment contract. If extra breaks are outlined in your contract then this allotment is binding. However, if the employee must remain at their place of work for these additional breaks, the breaks must be paid.

Ontario Shift Workers

What about employees doing shift work? These employees must have eight hours off work between shifts whose combined time exceeds 13 hours. For example, if you worked at a restaurant, you may work a split shift from 6:00-10:00 am and then 12:00-4:00 pm because the total number of hours worked is only eight. You could not, on the other hand, work a 6:00-10:00 am and then a 12:00-8:00 pm split shift as you would have worked 14 hours with only two hours break in between.

Daily and Weekly Rest

Breaks from work are about more than eating. Employees are also entitled to 11 consecutive hours off work each day. This is referred to as ‘daily rest’. This means an employee who finishes work at 11:00 pm, cannot return to work any earlier than 10:00 am the next morning.

In addition to this 11-hour break between work days, employees are entitled to 24 consecutive hours off work every week or 48 consecutive hours off work in every consecutive two-week period.

Employees cannot opt out of these rights to daily and weekly rest. However, there is an exception for employees who are on call or called in under exceptional circumstances.

Exceptional Circumstances

According to the ESA exceptional circumstances under which an employee may be asked to forgo the above break entitlements apply “only so far as is necessary to avoid serious interference with the ordinary working of the employer’s establishment or operations.”

Examples of exceptional circumstances include emergencies that may arise from or an accident, natural disaster or serious equipment failure.

Unforeseen situations that would compromise the provision of essential public services (such as transit or hospitals) and the unexpected interruption of seasonal operation (such as a harvest) or continuous processes (such as an assembly line) would be considered exceptional circumstances. The need to fill a rush order, meet the demands of busy holiday periods or cover an employee who calls in sick are not.

Well-rested employees are good for business

As an employer you may relish the idea of your employees working as long and as often as possible, in reality, they are far more likely to work effectively if they are given adequate breaks from work.

If you are curious about your rights as an employee or obligations as an employer, consult the employment law experts at KCY at LAW today! Call us at 905-639-0999 or book your consultation today!

Computer Use and Time Theft At Work

We’ve all done it: snuck a peak at our Facebook timeline in between scheduling meetings; paid a phone bill online after a work call with a client; checked out a new lasagna recipe recommended by a co-worker before starting a lunch break.

Computers have become ubiquitous in the workplace and so too has their occasional use for employees’ personal purposes.

Computer Use and Time Theft At Work

For employers, catching a glimpse of Facebook’s telltale blue or personal e-mails on an employee’s office computer during working hours is frustrating. They’re supposed to be working, after all. Surfing the net isn’t what you’re paying them for!

At what point does an employee’s personal internet use during work hours become worthy of reprimand? Can an employee wasting work time browsing the internet for personal interests amount to time theft? The case of Andrews v. Deputy Head offers some sobering insights.

Andrews v. Deputy Head (Citizenship and Immigration Canada)

In this case, Franklin Andrews, a federal bureaucrat with Citizenship and Immigration Canada, drew international attention when his internet surfing at work caused a legal debate about time theft.

In 2009, after 27 years working for the government, Andrews was fired after it was discovered that he had been spending more than half of every working day surfing the internet for news, sports and even a substantial amount of porn.

Andrews appealed his termination to the Public Service Labour Relations Board. He insisted that he hadn’t been given enough work to do and was simply bored. He further pointed out that he had never missed a deadline and regularly received positive feedback about his work.

The lawyer representing the Department of Citizenship and Immigration argued that this egregious wasting of work time – and therefore taxpayer money – was as “fraudulent as falsifying a time card” and should therefore be considered time theft. The lawyer also suggested Andrews should have asked for more work if he wasn’t given enough.

The adjudicator, Kate Rogers, agreed that Andrews was in violation of workplace policies by downloading porn. However, she did not believe that he had committed time theft. She argued that frittering away time on the internet was not an overtly fraudulent act. Moreover, Rogers was astonished that such significant time-wasting had been overlooked for so long. Rogers decided that a long suspension would have been a more appropriate disciplinary action. She ordered that Andrews be reinstated immediately.

Takeaway for Employers

Employers may look at the Andrews case and despair. If the government wasn’t able to fire an employee for spending half of his working hours looking at news, sports and porn, what recourse does the average employer have to deal with improper computer use during working hours?

Cutting off internet access entirely isn’t an option in today’s business environment and blocking specific sites can be difficult to enforce. Furthermore, overbearing policies can create low morale if employees feel that they are not trusted.

Just because an employee’s computer isn’t open to a word document, spreadsheet or an Adobe product, doesn’t necessarily mean that they’re wasting your time. Employees may want to use their lunch or coffee break to browse freely. A quick peak at a photo of their nephew might be just the two-minute distraction an employee needs to reset their focus for the next two hours.

Workplace Policies Are Your Best Defense

Therefore, clear, comprehensive and well-communicated workplace policies are your best defense against improper use of workplace computers.

You’ll be hard-pressed to demonstrate that an employee went ‘too far’ in their personal internet use during work time if you don’t clearly define what appropriate and inappropriate amounts of personal internet us are.

Policies should therefore outline what is a reasonable and unreasonable amount of time to browse the internet for personal purposes and make clear what kind of content is and is not appropriate.

Workplace Policy Experts

KCY at LAW can help you create clear and enforceable workplace policies to protect your business interests while respecting your employees. Call us today at 905-639-0999 or request a consultation.