Section 52 of the Act entitles employees to five days of unpaid leave during each employment year to meet responsibilities related to the care, health or education of a child in the employee’s care or the care or health of any other member of the employee’s immediate family.
Section 1 defines immediate family as the spouse, child, parent, guardian, sibling, grandchild or grandparent of an employee, and any person who lives with an employee as a member of the employee’s family.
An employer cannot refuse to grant family responsibility leave. While there is no request process set out in the act, employees are expected to give the employer reasonable notice of family responsibility leave and sufficient information for the employer to ascertain that the employee is entitled to the leave.
The entitlement to five days’ unpaid leave each year does not carry over from year to year if unused. In addition, a portion of a day taken off work may be counted as one full day of family responsibility leave for the purposes of calculating an employee’s remaining entitlement.
For more information, see Interpretation Manual – Section 52.
An Interesting Decision Interpreting Leave Provisions of the Act
The scope of family responsibility leave came before an arbitrator when an employee grieved his employer’s refusal to grant leave in order to move his adult son home from university: Eurocan Pulp and Paper v. Communications, Energy and Paper Workers Union of Canada, Local 298 (Schibli Grievance) (2007), 166 LAC (4th) 78 (Burke).
The grievor applied for two days of family responsibility leave related to his son. The reason given for the leave was “Edmonton relocation for summer employment”. The grievor had been granted family responsibility leave for similar requests in the past. However, those requests had been granted under a prior administration policy where supervisors granted such leaves without requiring employees to provide information sufficient to establish their entitlement to the leave. In 2005, the Employer changed its approach to family responsibility leave so that all requests were considered by the Employee Relations Office whose function was to ensure that only those requests which fell under the provisions of the Act were granted.
The Employee Relations Officer considered the grievor’s request and determined that transporting a post-secondary student home from university at the end of the school year was not “a responsibility related to the health, care or education of a child in the employee’s care” pursuant to section 52 of the Act. The Employer also sought clarification from the Employment Standards Branch as to whether its view was consistent with the Act. The Branch advised that such a situation did not entitle individuals to leave.
The Employer denied the request for family responsibility leave. The grievor applied for and was granted paid leave under provisions of the collective agreement and took the time off under those provisions. He grieved the Employer’s denial of family responsibility leave.
The Arbitrator rejected the Employer’s assertion that the grievor’s son was no longer a child and/or not in the employee’s care pursuant to the Act. The Arbitrator held that the Employer’s arguments created an overly narrow interpretation of the provision. In her view, if a child lives at home when not attending school or university that was sufficient to establish he or she is “in the employees care”. Arbitrator Burke ruled the leave request related to the son’s education as “education does not end at the age of majority”.
The Employer appealed the arbitrator’s decision to the Court of Appeal (see West Fraser Mills Ltd. (c.o.b. Eurocan Pulp and Paper Co.) v. Communications, Energy and Paperworkers Union of Canada, Local 298, 2008 BCCA 403). On review, the Court of Appeal found that the arbitrator erred in interpreting the word “child” in section 52 of the Employment Standards Act. According to the Court, “child” means a person under the age of majority. In the present case, the son was over the age of 19 (the age of majority in BC) and was no longer a child. Further, the Court found that the son was no longer in the care of his father as is required for the granting of family responsibility leave under section 52(a) of the Act. On this point, the Court considered the fact that the son had lived away from his parents’ home independently of his parents for the majority of the previous three years. Therefore, it was the view of the Court that the arbitrator was unreasonable in her conclusion that the son was in the care of his father simply because he lived in his parents’ house for part of the year. There were no facts from which one could conclude that the son was in the care of his father for the majority of the year when he was attending university in Edmonton.
Information provided by Ryan Anderson, an employment lawyer with Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.