Recent Changes to New Brunswick’s Employment Standards Act Increases Employees’ Leave Eligibility

Each province’s employment standards legislation provides for a wide array of leaves for which an employee may be eligible. New Brunswick’s Employment Standards Act(the “Act”) was amended on September 1, 2014 to provide for two new types of leaves related to children of employees: “Critical Illness Leave” and “Death or Disappearance Leave”.

Although they may seldom arise, employers should nevertheless be aware of the new leaves. In New Brunswick, the terms and conditions of the leaves can be summarized as follows:

Critical Illness Leave

This leave permits an employee to apply for an unpaid leave of absence for a period of up to 37 weeks to provide care and support for a critically ill child. In order to qualify for the leave:

• The child must be under 18 years of age;
• The employee must provide a doctor’s certificate along with the date of anticipated commencement and duration of the leave; and
• The employee must give the employer notice of his/her intention to take the leave as soon as possible.

The leave ends on the last day of the week in which the child passes away or at the expiration of the 37 weeks.

In the event that both parents of the child work for the same employer, the leave may be split between the two parents or taken wholly by one. However, the entire duration of the leave in respect of one child cannot exceed 37 weeks.

Following the leave, employees are entitled to their former position with the employer or an equivalent position with no decrease in pay.

Death or Disappearance Leave

This leave also permits an employee to apply for an unpaid leave of absence for a period of up to 37 weeks. The leave can be used when an employee’s child dies or disappears as the probable result of a crime. As such, not every death or disappearance of a child will entitle an employee to this leave, it must be probable that the death or disappearance is related to a crime. In order to qualify for this leave:

• The child must be under 18 years of age;
• The employee must provide the employer with evidence that is reasonable in the circumstances of the employee’s entitlement to the leave;
• If the employee is charged with the crime, he/she is not entitled to the leave.

The leave will start no sooner than the day that the death or disappearance occurs, and ends 37 weeks from that date, or on an earlier date as specified by the employee. If the child is found alive, the leave will end no later than 14 days from the date the child is found alive. Similarly, where it is no longer probable that the death or disappearance is the result of a crime, the leave shall end no later than 14 days from that date.

Unlike the Critical Illness Leave, parents who work for the same employer are both entitled to take a 37 week leave, it need not be split between the two.

Following the leave, employees are entitled to their former position with their employer or an equivalent position with no decrease in pay.

Currently in Atlantic Canada, Newfoundland and Nova Scotia have incorporated similar leaves in their employment standards legislation:

• In Nova Scotia an employee is eligible for up to 37 weeks of unpaid leave for “Critically Ill Child Care Leave” in a 52 week span (after 3 months of service). With regard to “Crime-related Child Death or Disappearance Leave”, in the case of death of the child, an employee is eligible for up to 104 weeks of unpaid leave. In the case of disappearance of the child, an employee is eligible for up to 52 weeks of unpaid leave (both after 3 months of service).
• In Newfoundland an employee is eligible for up to 37 weeks of unpaid leave for “Critically Ill Child Care Leave” in a 52 week span (after 30 days of service). With regard to “Crime-related Child Death or Disappearance Leave”, in the case of death of the child, an employee is eligible for up to 104 weeks of unpaid leave. In the case of disappearance of the child, an employee is eligible for up to 52 weeks of unpaid leave (both after 30 days of service). For more on the two leaves in Newfoundland please see our previous post at the following link:
  Newfoundland and Labrador Labour Standards Act Amendments Extend Employment Protection for Some Parents
• Prince Edward Island has yet to incorporate these types of leaves into its legislation.

What this Means for Employers

 In New Brunswick, the two new leaves are in addition to several other unpaid leaves already established by the Act including:

• Sick Leave – 5 days.
• Family Responsibility Leave – 3 days.
• Bereavement Leave – 5 consecutive days.
• Maternity Leave – 17 weeks.
• Child Care Leave – 37 weeks.
• Court Leave – for the period required.
• Compassionate Care Leave – 8 weeks.
• Leave for Reservists – 30 continuous days for training, 18 months other than training (subject to extension).

Employee eligibility for leaves may become confusing, as certain requests for leave may appear to fall under more than one category. Employers should take time to familiarize themselves with the legislation to prevent wrongfully denying an employee leave to which they are otherwise legally entitled.