With Remembrance Day just around the corner, this is a brief blog post on the often overlooked “Reservist Leave” provision under the Employment Standards Act (“ESA”).
The Canadian Forces has approximately 21,000 reservist members and these part-time military positions allow those who hold them to work regular jobs and live as civilians. There may consequently be members of the military reserve in your workforce, and these reservists may be called upon for military service. When they are, they are entitled to a special form of job-protection.
What is a Reservist?
A “reservist” is someone who is a member of the military reserve force, meaning that they are not active members unless they are called upon by the Canadian Forces. While they are usually required to participate in training regularly to keep up their skills, they will otherwise have other careers and live as civilians.
What is Reservist Leave?
In 2007 the Ontario government amended the Employment Standards Act to include job protection for reservists. This is an unpaid, job-protected leave.
Under s.50.2(3) of the ESA an employee must have six months of continuous service to the employer to qualify for the leave.
An employee can take a job-protected reservist leave if he or she is deployed to a Canadian Forces operation outside of Canada, or if he or she is deployed to a Canadian Forces operation inside Canada to provide assistance in dealing with an emergency or its aftermath. In cases of deployment to an operation outside of Canada, the leave period includes pre and post-deployment activities that might be required by the Canadian Forces in connection with the operation.
How Long Must the Job be Held For?
An employer is required to hold the reservist employee’s job open for as long as the employee’s deployment lasts. There is no time-limit and an employer will not be able deem an employee terminated, or a contract frustrated, due to the length of the leave.
Return to Work
The employer is required to return the employee to the same position, or a comparable position if the position no longer exists, when the employee’s deployment is over. If the employee is being reinstated to a different position it must be of equal or greater pay to their original position.
The employer can postpone the employee’s return to work date by two weeks in order to make return to work arrangements.
An employee is required to provide their employer with reasonable written notice of the beginning of the leave and of the end of the deployment. In circumstances where it is not realistic to provide notice before the leave begins, notice must be provided as soon as possible.
Benefits During the Leave
Unlike the requirements under other types of ESA protected leaves, employers are not required to maintain benefit programs for employees who are on a reservist leave. Employees returning to work are entitled to benefit coverage as soon as their reservist leave ends, this includes during the two week wait period that an employer may impose.
Reservists leave requests will often come on short notice. It is important, if you have a reservist working for your company, to be prepared with respect to how to deal with such a leave. Human Resources Policies should reference reservist leave, and both employees and employers should be aware of protocol, and the employee’s rights, with respect to job-protection and entitlement to benefits during the leave.