Leaves from Work

Leaves from Work : NS Labour and Advanced Education, Employment Rights

Employees may be eligible for a variety of leaves under the Labour Standards Code. These leaves recognize that events in our personal lives can sometimes interrupt work. On these occasions, some level of accommodation from the employer is necessary and appropriate.

The leaves of absence are pregnancy and parental, reservist, compassionate care, critically ill child care, critically ill adult care, domestic violence, crime-related death or disappearance, emergency, sick, bereavement, court, and citizenship ceremony.

Most of the leaves are unpaid leaves of absence, meaning that the employer does not have to pay the employee during these absences. Employment Insurance benefits may be available for some of these leaves. In the case of domestic violence leave, employees are entitled to receive pay for part of the leave.

General Information for Protected Leaves

During a leave of absence, an employee leaves the job intending to return. The intent is to provide job protection so employees can take time off from their job for the leave. Employees can qualify for multiple leaves under the Labour Standards Code.

For all protected leaves under the Labour Standards Code, the employer must:

  • allow the employee to keep up, at the employee's own expense, any benefit plans to which the employee belongs - note the employer must give 10 days' written notice before the option to keep up employee benefits is no longer in effect, and
  • accept the employee back to the same position held by the employee immediately before the leave began, or, where that position is not available, in a comparable position with no loss of seniority or benefits when the employee returns from the leave

In addition, employers are required to keep confidential any information they receive in relation to a protected leave of absence an employee takes. Employers must not share the information except in situations where:

  • the employee has consented to the information being shared
  • an agent or employee of the employer, such as a manager, needs the information to do their job, or
  • the law requires that the information be disclosed


Pregnancy and Parental Leaves

Pregnancy leave is an unpaid leave for pregnant employees. It can last up to 16 weeks. An employer can require that an employee take an unpaid leave of absence if the pregnancy interferes with the employee'€™s work. There are times when the Human Rights Act or the employee's contract prevents this.

The Labour Standards Code also allows parents to take parental leave to care for their newborn or newly adopted children. This unpaid leave is up to 77 weeks. For employees who also take pregnancy leave, they can take a total of 77 weeks combined pregnancy (16 weeks) and parental (61 weeks) leave.

Employees do not need a certain length of service to qualify for pregnancy and parental leaves. For example, an employee could take parental leave shortly after starting their employment.

To Take Pregnancy or Parental Leave

To take pregnancy or parental leave, an employee must give the employer at least four weeks' notice of both the date on which leave will start and, if the employee plans to return early, the planned date of return to work. If the employee cannot give four weeks' notice of leave because the employee has been employed for fewer than four weeks, the baby is born early, because of a medical condition, or because of an unexpected adoption placement, then the employee must give as much notice as possible.

An employer can ask for proof of entitlement for pregnancy or parental leave. This can include a certificate from a doctor or adoption worker.

If an employee is taking both pregnancy and parental leaves, the employee must take them one right after the other and not go back to work between the two leaves.

If an employee is taking parental leave but not pregnancy leave, the employee can take up to 77 weeks' leave in the time after the child is born or arrives in the home. The employee loses this right if the leave is not taken within 18 months after the child arrives in the home.

If a newly arrived child must go into hospital for more than one week, the employee can return to work and use the rest of the parental leave after the child comes out of hospital.

Employees who take pregnancy and/or parental leave may qualify for maternity benefits and/or parental leave benefits under the federal government's Employment Insurance program. For more detail on these benefits, contact Service Canada.

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Reservist Leave

The Labour Standards Code includes a leave for employees who serve in the Canadian Forces reserve force and require time off from their civilian employment for the purpose of service. The leave can be taken for a deployment inside or outside of Canada €”and associated activities, training required by the Canadian Forces (including military skills training), travel related to deployment and training, and treatment, recovery or rehabilitation with respect to a physical or mental health problem resulting from deployment or training activities. To qualify for this leave, the employee must be employed with their civilian employer for a period of at least three months.

Eligible employees can take up to 24 months of reservist leave within any 60-month period. They can take more leave than this if the leave is required as a result of a national emergency under the Emergencies Act (Canada).

Employees who take reservist leave must return to work no later than four weeks after a deployment related period of service ends. Employees who take reservist leave for training that is unrelated to deployment must return to work no later than the next regularly scheduled working day after the training related period of service ends.

To take Reservist Leave

An employee must give their employer four weeks' written notice of their intention to take reservist leave, the anticipated start and end date of the leave and the anticipated date of return to work. If an employee receives less than four weeks' notice from the Canadian Forces of a requirement to participate in a period of service, they must provide their civilian employer with as much notice as reasonable in the circumstances €”the notice does not need to be given in writing if it is not practicable to do so. If there are any changes to the anticipated start and end dates for the leave and the anticipated return to work date, the employee must inform the employer of these changes as soon as reasonably practicable and must do so in writing if possible.

An employer can require an employee to provide a certificate from an official with the Reserves confirming that the employee is a member of the Reserves who is required for service and specifying the dates for the period of service.

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Compassionate Care Leave

Compassionate care leave is an unpaid, 28-week leave for employees who need to care for a seriously ill family member (or a person like family) who has a high risk of dying within 26 weeks.

To qualify for this leave, the employee must be employed with their employer for a period of at least three months. Also, they must give their employer as much notice as possible before taking the leave. An employer can ask an employee to provide a medical certificate, from a medical doctor, stating that the employee's family member is seriously ill. The employee can take up to 28 weeks' leave, which must be taken over a 52-week time frame. The leave can be broken up into several periods of at least one week in duration during the 52-week time frame. The 52-week time frame begins on the first day of the week in which the leave began.

Employees who take a compassionate care leave may qualify for a compassionate care leave benefit under the federal government's Employment Insurance program. For more detail on this benefit, contact Service Canada.

FAQs

Who decides whether a family member is sick enough for an employee to take the leave?

It is up to a legally qualified medical practitioner to determine whether the family member has a serious medical condition with a significant risk of dying within 26 weeks. The employee may be required to provide a certificate from the medical practitioner.

Who is considered to be a family member of the employee?

  • Immediate and extended family. Contact Labour Standards if you have questions.
  • A person (related or not) who considers the employee to be like a family member or who is considered by the employee to be like a family member. Employees wishing to take a Leave for a person in this category must provide their employer, if requested, with a completed copy of the Family Member Attestation form, available from Employment and Social Development Canada (ESDC). For those not applying for EI, an alternate statement may be provided; contact Labour Standards to learn more.

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Critically Ill Child Care Leave

Critically ill child care leave is an unpaid leave that allows an employee to take time off work to provide care and support to a critically ill or injured child (under the age of 18 years old) who is a family member (or person like family). To qualify for this leave, the employee must have worked with the employer for at least three months. A qualified medical practitioner must issue a medical certificate stating that the child has a critical illness and the period of time for which the child needs care.

The employee can take up to 37 weeks’ leave, which must be taken within a 52-week time frame. The leave can be broken up into several periods of at least one week in duration during this time frame. The 52-week time frame begins on the first day of the week in which the child became critically ill.

In some circumstances, an employee may need further leave, which may be taken if an additional certificate is issued—the total combined leaves must not be more than 37 weeks in the 52-week time frame.

The leave ends when the number of weeks stated in the medical certificate has been taken. If the employee stops providing care to the child, the leave ends at the end of the week in which the employee stops providing care. An employee can choose to return to work earlier by giving at least 14 days’ notice.

Employees who take a critically ill child care leave may qualify for a benefit under the federal government's Employment Insurance program. For more detail on this benefit, contact Service Canada.

To Take Critically Ill Child Care Leave

The employee must let the employer know in writing as soon as possible of their intention to take the leave. Where the leave must begin before written notice can be given, the employee must advise the employer of the leave as soon as possible. The employee must also give the employer a plan setting out how the leave will be taken, since the leave can be broken up into more than one period over the 52 week time frame. This leave plan can be changed during the leave with the employer’s agreement or by providing the employer with reasonable notice.

The employer can ask in writing for a copy of the medical certificate.

What is the definition of critically ill child?
"Critically ill child" is defined in the federal Employment Insurance Act regulations. A critically ill child is a person under the age of 18 who has a life-threatening illness or injury.

Who can take critically ill child leave?

  • Immediate and extended family. Contact Labour Standards if you have questions.
  • A person like family: A person (related or not) who considers the critically ill child to be like a close relative, or that the critically ill child considers like a close relative. If the employer requests, the employee must provide a statement confirming this. Employees wishing to take a Leave for a person in this category must provide their employer, if requested, with a completed copy of the Family Member Attestation form, available from Employment and Social Development Canada (ESDC). For those not applying for EI, an alternate statement may be provided; contact Labour Standards to learn more.

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Critically Ill Adult Care Leave

Critically ill adult care leave is an unpaid leave that allows an employee to take time off work to provide care and support to a critically ill or injured adult (18 years old or older) who is a family member (or a person like family). To qualify for this leave, the employee must have worked with the employer for at least three months. A qualified medical practitioner must issue a medical certificate stating that the adult has a critical illness and the period for which the adult needs care.

The employee can take up to 16 weeks’ leave, which must be taken within a 52-week time frame. The leave can be broken up into several periods of at least one week in duration during this time frame. The 52-week time frame begins on the first day of the week in which the adult became critically ill.

In some circumstances, an employee may need further leave, which may be taken if an additional certificate is issued—the total combined leaves must not be more than 16 weeks in the 52-week time frame.

The leave ends when the number of weeks stated in the medical certificate has been taken. If the employee stops providing care to the adult, the leave ends at the end of the week in which the employee stops providing care. An employee can choose to return to work earlier by giving at least 14 days’ notice.

Employees who take a critically ill adult leave may qualify for a benefit under the federal government's Employment Insurance program. For more detail on this benefit, contact Service Canada.

To take critically ill adult leave

The employee must let the employer know in writing as soon as possible of their intention to take the leave. Where the leave must begin before written notice can be given, the employee must advise the employer of the leave as soon as possible. The employee must also give the employer a plan setting out how the leave will be taken, since the leave can be broken up into more than one period over the 52-week time frame. This leave plan can be changed during the leave with the employer’s agreement or by providing the employer with reasonable notice.

The employer can ask in writing for a copy of the medical certificate.

What is the definition of critically ill adult?

Critically ill adult is defined in the federal Employment Insurance Act regulations. A critically ill adult is a person 18 or older who has a life-threatening illness or injury.

Who can take critically ill adult leave?

  • Immediate and extended family. Contact Labour Standards if you have questions.
  • A person like family: A person (related or not) who considers the critically ill adult to be like a close relative, or that the critically ill adult considers like a close relative. If the employer requests, the employee must provide a statement confirming this. Employees wishing to take a Leave for a person in this category must provide their employer, if requested, with a completed copy of the Family Member Attestation form, available from Employment and Social Development Canada (ESDC). For those not applying for EI, an alternate statement may be provided; contact Labour Standards to learn more.

What is the difference between critically ill adult leave and compassionate care leave?

A critically ill adult is a person 18 or older who has a life-threatening illness or injury. For compassionate care leave, the family member (of any age) has a serious medical condition with a significant risk of dying within 26 weeks (providing what is likely to be end-of-life care). For instance, an employee may be able to take critically ill adult leave, and then, should the condition of the family member worsen, take compassionate care leave.

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Domestic Violence Leave

Domestic violence leave can be taken by an employee who is experiencing domestic violence or whose child (under 18) is experiencing domestic violence. The employee may take up to ten intermittent or consecutive days per calendar year. The employee may also take up to 16 consecutive (continuous) weeks per calendar year. Up to three days of the leave must be paid by the employer. To qualify for domestic violence leave, the employee must have worked with the employer for at least three months.

Under the Labour Standards Code, domestic violence is defined broadly. It is an act of abuse that can be physical, sexual, emotional, or psychological. It can include coercion, stalking, harassment or financial control. Or, it can be a threat of such abuse.

The leave applies to situations of abuse involving the following relationships:

An employee who is abused by:

  • their current or former intimate partner
  • their child
  • a person under 18 years who lives with them
  • an adult who lives with them and is related to them by blood, marriage, adoption or foster care

An employee whose child (under 18) who is abused by:

    • the child’s current or former intimate partner
    • a person who lives with the child

Domestic violence leave can be used by an employee to seek medical attention for themselves or their child; obtain services for themselves or their child from a victim services organization, psychological or other professional counselling (or certain culturally-specific services); relocate temporarily or permanently; or seek legal or law enforcement assistance.

To take Domestic Violence Leave

An employee must advise their employer in writing as soon as possible of their intention to take domestic violence leave, and the anticipated start and end date of the leave. The employer may ask the employee to provide a form developed by the Labour Standards Division to support the employee’s entitlement to domestic violence leave. It is an employer’s choice whether to require the employee to provide this form to the employer. An employee can obtain the form online or by contacting the Labour Standards Division.

The longer part of domestic violence leave is up to 16 consecutive weeks. To end the longer leave early, the employee must give the employer written notice of at least 14 days before the employee wishes to end the leave, or as much notice as possible.

The shorter part of the leave is ten days, which can be taken at different times or all at once. An employee may end this leave early by giving as much notice as is reasonably possible.

Up to three days of domestic violence leave, per calendar year, must be paid by the employer. For the three paid days, each day must be paid at the employee’s regular wage for all hours the employee would have worked that day if the leave had not been taken. The employee can choose which of the days are the three paid days by notifying the employer in writing of this. Otherwise, the employer must treat the first three days taken of the leave as paid days.

Any part of a day taken for domestic violence leave counts as a full day of leave. If an employee works a portion of a day, they must be paid for the time they worked on that day. Also, paid leave for any portion of a work day counts as one of the three paid days that an employee is entitled to under the Labour Standards Code. For example, if an employee takes domestic violence leave for three hours of a 7-hour shift, and works the remainder of the shift, that would count as one of their ten days of leave. Further, if the employee receives pay for the three hours of leave on that day, it will count as one of the three days of paid leave.

The law also requires that employees attempt to schedule appointments during non-working hours, if possible.

Learn more about domestic violence leave under the Nova Scotia Labour Standards Code by taking our free online public education course, which takes approximately 20 minutes to complete.


Crime-related Child Death or Disappearance Leave

Crime-related death or disappearance leave is an unpaid leave for parents and guardians who are facing the death or disappearance of their child (under 18 years of age) resulting from a probable crime.  To qualify for the leave, the employee must have worked with the same employer for at least 3 months. The employee is not entitled to the leave if charged with the crime.

An employee can to take up to 52 consecutive weeks of unpaid leave if their child has disappeared and up to 104 consecutive weeks if their child has died.

Where a missing child is found alive during the 52 week leave period, the employee can continue the leave for another 14 days. If the child is found dead, the disappearance leave ends immediately and the employee can start 104 weeks of leave related to the death of the child.

Where the death or disappearance no longer seems to be the result of a crime, the employee can continue the leave for another 14 days and the employee must give the employer notice in writing of their return to work as soon as possible.

The employee can end the leave early by giving the employer 14 days’ written notice.

Employees who take a crime-related death or disappearance leave may qualify for income support through a federal government grant. For more information on this grant please contact Service Canada.

To Take Crime-related Child Death or Disappearance Leave

The employee must let the employer know in writing as soon as possible of their intention to take the leave. Where the leave must begin before written notice can be given, the employee must advise the employer of the leave as soon as possible.

The employee must also give the employer a written plan outlining the period that they will take the leave, which can be changed during the leave period with the employer's agreement or by giving the employer 4 weeks' written notice.

The employer can ask for reasonable evidence of the death or disappearance of the child and evidence showing it was likely due to a crime.

Who is considered to be a parent for crime-related death or disappearance leave?

For this leave, a parent is defined as:

  • a parent of a child
  • the spouse of a parent of a child (spouse includes two persons living together in a conjugal relationship for at least one year)
  • a person with whom a child has been placed for the purpose of adoption
  • a guardian or foster parent of a child
  • a person who has the care and custody of a child pursuant to the Children and Family Services Act

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Emergency Leave

Employees are entitled to an unpaid leave if they are unable to perform their work because of:

  • an emergency declared under the Emergency Management Act, or
  • a direction or order of a medical officer—or a public health emergency declared—under the Health Protection Act, or
  • an emergency declared under the Emergencies Act (Canada)

Employees are also eligible for the leave if they cannot perform their work because they need to care for a family member who is affected by one of the emergency situations noted above and the employee is the only person who can reasonably care for the family member in the circumstances.

Employees are eligible for the leave for as long as the emergency prevents them from being able to perform their work. For example, if an employee can perform their work remotely, the leave does not apply.

Emergency Leave FAQ


Sick Leave

Employees are entitled to receive up to three days of unpaid sick leave each year. This leave may be used to care for an ill parent, child, or family member. It can also be used for medical, dental, or other similar appointments for the employee or the employee family member.


Bereavement Leave

Employees can take unpaid leave of up to five working days in a row if their spouse, parent, guardian, child / child under their care, grandparent, grandchild, sister, brother, mother-in-law, father-in-law, daughter-in-law, son-in-law, sister-in-law, or brother-in-law dies. 

Employees must give their employers as much notice as possible that they will take this leave.


Court Leave

Employees can take unpaid leave if they must serve on a jury or the court says that they must appear as a witness. They must give their employer as much notice as possible that they will take court leave.


Citizenship Ceremony Leave

Employees are entitled to take an unpaid leave of absence of up to one day, or less if the employee chooses, to attend their citizenship ceremony.

If possible, employees must give their employer 14 days' notice that they plan to take the leave. If this is not possible, they must give as much notice as is reasonably possible.

If the employer asks, the employee must provide evidence that they are attending their citizenship ceremony on a particular day, for example the “Notice to Appear” sent by Citizenship and Immigration Canada.


Discrimination against an Employee

It is against the law to fire, lay off, or discriminate in any way against an employee who has taken or has said that they intends to take—or if the employer believes the employee may take—a leave of absence that the Labour Standards Code says the employee should be able to take. If a complaint is filed Labour Standards will investigate to determine if:

  • the employer has good reason to fire or suspend the employee for past behavior and can show that the behaviour has not been allowed in the past
  • there is lack of work that the employer could not foresee and avoid
  • the business has stopped operating or the employee’s job is no longer needed and the employer is unable to provide other reasonable employment; the employer must show that they acted in good faith

If Labour Standards finds an employee has been discriminated against for having taken a leave or for intending to take a leave, the employer may be ordered to bring the employee back to the job with full back pay dating to the date the employee was fired. If the employee does not wish to go back to the job, Labour Standards may order a reasonable alternative remedy.


FAQs

What if an employee’s job is no longer available?

Employees must be given a comparable position with the same pay and benefits. There may be some circumstances where an employee’s job is eliminated and the employer does not have a comparable job to give the employee. In these situations, employers will need to show that the job is gone and that the leave had no impact on the decision to lay-off or terminate the employee’s employment. When employees are being let go because a job is being eliminated usually they must be given written notice that the job is ending or pay lieu of notice.

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