This week, Christine Thomlinson wrote a great blog post on the (potential) come-back of Tiger Woods. She draws a parallel between Tiger’s return to golf and employees returning to work after a difficult period in their life, whether criminal, personal, or otherwise. As she points out, there are a number of pro-active steps an employer can take to ease the transition.
I would suggest that Christine’s comments also extend to other types of absences, such as a maternity or parental leave, a sick leave or workplace sabbatical. When an employee has been absent from the workplace for a period of time – even if for very happy reasons such as becoming a new parent – the workplace will continue to chug along without the absent employee.
What are an employer’s obligations and an employee’s entitlements during an extended leave? For American employers with a Canadian subsidiary, this area is often a completely bizarre area of Canadian employment law.
Part XIV of the Employment Standards Act (ESA) provides for the following types of statutory leaves:
- Pregnancy Leave
- Parental Leave
- Family Medical Leave
- Emergency Leave, and
- Reservist Leave.
While an employer can offer other types of leaves (e.g. educational leave, etc), it is the above statutory leaves that come with specific legal entitlements.
For example, when an employee finishes his or her statutory leave, the ESA requires the employer to "reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not."
The employer must also reinstate the employee at a wage rate that is equal to the greater of (a) the rate the employee most recently earned with the employer or (b) the rate the employee would be earning had she or he worked throughout the leave.
A further example involves benefit plans. An employee on a statutory leave is entitled to continue to participate in the following benefit plans: pension plans, life insurance plans, accidental death plans, extended health plans, and dental plans. Again, while an employer can chose to continue all benefits in which the employee is enrolled prior to the leave, it is only the statutory enumerated benefit plans that must be continued during the leave.
A caveat to this is if the benefit premiums are normally employee paid – in this case, the employee can give the employer written notice that he or she does not intend to pay the employee’s contributions, in which case, the employer can cease the benefits for the duration of the leave.
In general, any entitlement based on length of employment must continue to accrue. An entitlement based on hours worked, however, will generally amount to $0, since the employee will have worked 0 hours during the leave.
While the majority of leaves seem to go smoothly, there are always both legal, human resource and business issues to consider.
The above outlines some of the legal issues. Have you run across unique human resource or business issues in your workplace that were difficult to reconcile with the legal obligations?