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Family Medical leave

The Employment Standards Act, 2000 (ESA) provides leave to allow employees to take time off work to care for certain family members and persons who consider the employee to be like a family member.

This section describes the Family Medical leave, which became available under the ESA as of June 29, 2004.


Table of Contents
  1. What is Family Medical leave?
  2. Is Family Medical leave the same as Personal Emergency leave?
  3. Am I entitled to both Family Medical leave and Personal Emergency leave?
  4. Who can take Family Medical leave?
  5. Do I get paid when I am on Family Medical leave?
  6. How long is the Family Medical leave?
  7. When can I start a Family Medical leave and when does it end?
  8. Can I take a leave without a medical certificate?
  9. What proof do I need to show that I am eligible for a Family Medical leave?
  10. What notice do I have to give my employer if I want to take Family Medical leave?
  11. Can I be fired for taking a Family Medical leave?
  12. What rights do I have when I return to work?
  13. What happens to my seniority and benefits when I'm on leave?
  14. What if I think my employer is not following the ESA?
  15. Can I see the ESA?

What is Family Medical leave? Top

Family Medical leave is unpaid, job-protected leave of up to eight (8) weeks in a 26-week period.

An employee can take Family Medical leave to provide care and support to a specified family member as well as persons who consider the employee to be like a family member if that person has a serious medical condition with a significant risk of death occurring within a period of 26 weeks. The medical condition and risk of death has to be confirmed in a certificate issued by a qualified medical health practitioner.

Family Medical leave is available to you whether you apply for Federal Employment Insurance compassionate care benefits or not. (See Do I get paid when I am on Family Medical leave?)

If you are applying for Employment Insurance (EI) compassionate care benefits, a copy of the medical certificate submitted to Human Resources and Social Development Canada may also be used for the purpose of Family Medical leave.

The specified individuals for whom a family medical leave may be taken are:

  • the employee's spouse (including same-sex spouse)
  • a parent, step-parent or foster parent of the employee or the employee's spouse
  • a child, step-child or foster child of the employee or the employee's spouse
  • a brother, step-brother, sister, or step-sister of the employee
  • a grandparent or step-grandparent of the employee or of the employee's spouse
  • a grandchild or step-grandchild of the employee or of the employee's spouse
  • a brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee
  • a son-in-law or daughter-in-law of the employee or of the employee's spouse
  • an uncle or aunt of the employee or of the employee's spouse
  • the nephew or niece of the employee or of the employee's spouse
  • the spouse of the employee's grandchild, uncle, aunt, nephew or niece
  • a person who considers the employee to be like a family member

If you are taking a Family Medical leave to care for "a person who considers you to be like a family member", your employer may require you to provide a copy of a completed Compassionate Care Benefits Attestation form. The attestation form is the same form used to support certain claims for federal employment insurance compassionate care benefits and can be downloaded from the Human Resources Social Development (HRSDC) website at www.hrsdc.gc.ca/cgi-bin/search/eforms/index.cgi?app=profile&form=ins5223&lang=e.

Providing care and support could include providing psychological or emotional support, arranging for care by a third party provider or directly providing or participating in the care of the individual.

If two or more employees qualify for the leave in respect of the same individual, the eight (8) weeks must be shared between them. In certain limited circumstances, an employee may be entitled to take subsequent leaves to care for the same individual.

Is Family Medical leave the same as Personal Emergency leave? Top

No. Personal Emergency leave is an unpaid leave of up to 10 days in each calendar year which can be taken because of personal illness, injury or medical emergency or the death, illness, injury, medical emergency of or urgent matters relating to certain family members and dependent relatives. It is only available to employees who work for employers that regularly employ at least 50 employees.

Am I entitled to both Family Medical leave and Personal Emergency leave? Top

An employee may be entitled to both Family Medical leave and Personal Emergency leave. They are separate leaves and the right to one leave is independent of the right to the other. An employee who qualifies for both leaves would be entitled to both leaves.

Who can take Family Medical leave? Top

All employees, whether full-time or part-time, permanent or term contract, who are covered by the ESA are entitled to Family Medical leave.

Employees don't have to be employed by their employer for a particular length of time nor does the employer have to employ a minimum number of employees.

Do I get paid when I am on Family Medical leave? Top

An employer does not have to pay regular wages to an employee who is on Family Medical leave. However, your employer must continue to pay the employer's share of the premiums for certain benefit plans (i.e., pension plans, life insurance, accidental death, extended health insurance and dental plans).

Employees who are off on the leave may qualify for employment insurance benefits under the federal government's employment insurance program. These benefits are called "compassionate care" benefits. For information about the EI compassionate care benefits you can call Human Resources Social Development [HRSDC], Employment Insurance Telemessage General Inquiries at 1-800-206-7218 or you can visit HRSDC's internet site.

How long is the Family Medical leave? Top

A Family Medical leave can last up to eight (8) weeks within a specified 26-week period. A week is defined for the purposes of the family medical leave provisions as a period of seven (7) consecutive days beginnings on a Sunday and ending on a Saturday.

The eight (8) weeks of leave do not have to be taken consecutively but the leave must be taken in periods of at least one full week at a time.

The eight (8) weeks of leave must be shared by all employees who take a Family Medical leave to provide care and support to the same individual. For example, if one spouse took six (6) weeks of leave to care for his or her child, the other spouse would be able to take only two weeks of Family Medical leave.

When can I start a Family Medical leave and when does it end? Top

The earliest the leave can start is the first day of the first week in the 26-week period identified on the medical certificate. Since week is defined for the purposes of Family Medical leave as seven (7) consecutive days beginning on a Sunday and ending on a Saturday, the week identified in the certificate should also commence on a Sunday. If a certificate says the 26-week period starts on a day other than a Sunday, it will be deemed to have started on the preceding Sunday.

The latest day an employee can remain on leave is:

  • The last day of the week in which the individual dies or
  • The last day of the week in which the 26-week period expires or
  • The last day of the eight (8) weeks of Family Medical leave
whichever is earlier. Based on the definition of "week" for Family Medical leave purposes, the leave would always end on a Saturday.

Can I take a leave without a medical certificate? Top

The right to the Family Medical leave depends upon the issuance of the medical certificate by a qualified health practitioner that states the individual suffers from a serious medical condition and there is a significant risk of death within 26 weeks.

The medical certificate must be issued by a practitioner who is qualified to practice medicine in the jurisdiction in which the care or treatment of the individual is being provided. In Ontario, this would mean only a medical doctor can issue the certificate.

An employee may commence a leave before obtaining a medical certificate but the right to the leave depends on the issuance of that certificate and the leave must be taken within the 26-week period set out in the certificate.

If you cannot obtain a certificate, you are not entitled to the leave and will not have job protection if you do not report to work. Your employer may voluntarily agree to provide you with time off work in those circumstances, but is not required to do so under the Act.

What proof do I need to show that I am eligible for a Family Medical leave? Top

An employer is entitled to ask for a copy of the medical certificate issued by the qualified health practitioner and the employee is required to provide the copy as soon as possible after the employer requests it. The employee is responsible for obtaining and paying any costs associated with obtaining the certificate.

If you are taking a Family Medical leave to care for "a person who considers you to be like a family member", your employer is also entitled to require you to provide a copy of a completed Compassionate Care Benefits Attestation form. This form can be downloaded from the Human Resources Social Development (HRSDC) website at www.hrsdc.gc.ca/cgi-bin/search/eforms/index.cgi?app=profile&form=ins5223&lang=e.

What notice do I have to give my employer if I want to take Family Medical leave? Top

An employee has to inform the employer in writing that he or she will be taking a Family Medical leave. If there is no time to give the employer notice before starting the leave, the employee must notify the employer in writing as soon as possible after starting the leave. It is the ministry's view that an employee who doesn't give notice doesn't lose his or her rights to a Family Medical leave.

Can I be fired for taking a Family Medical leave? Top

No. An employer can't fire or otherwise penalize an employee in any way for taking, planning on taking, being eligible or being in a position to become eligible to take a Family Medical leave. See Reprisals

What rights do I have when I return to work? Top

Generally, an employee who takes Family Medical leave is entitled to:

  • the same job he or she had before beginning the leave
  • OR

  • a comparable job if his or her old job no longer exists,

but your employer won't have to give you your job back or a comparable job if its reasons for ending your employment that are totally unrelated to the leave.

On returning to work, you must be paid at least as much as you were earning before the leave. However, if your wages would have gone up had you not gone on the leave, you are entitled to the higher rate.

If the employer fails to properly reinstate an employee after a Family Medical leave, a claim can be filed and the employer may be ordered to pay compensation and/or to reinstate the employee.See Reprisals.

What happens to my seniority and benefits when I'm on leave? Top

Although your employer does not have to pay you during a Family Medical leave, you continue to earn credits towards seniority, length of service and length of employment.

While an employee is on leave, the employer must continue to pay its share of the premiums for certain benefit plans (i.e. pension plans, life and extended health insurance plans, accidental death plans and dental plans) that were offered before the leave.

What if I think my employer is not following the ESA? Top

What if I think my employer is not following the ESA?

Can I see the ESA? Top

Employment Standards Act, 2000

Resources: Top

Government:
Ontario Ministry of Labour
Your Guide to the Employment Standards Act, 2000: Family Medical Leave




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