Am I able to take time away from work to be with a dying parent or grandparent? Very close friend?
Someone very close to us is diagnosed with a terminal illness. Life expectancy is measured in months.
If ever there was a time for togetherness, it’s during those precious last months.
A full-time job and family commitments allow for only minimal connection. What if you were able to take some time off from work, confident that doing so would not negatively impact your employment?
Maybe a week or so when the shock of the terminal diagnosis hits. And then here and there as your loved one most needs your emotional, and perhaps physical care support.
A good friend living in Ontario suggested this topic when he learned that I was writing about end-of-life matters.
He prompted me with “You know the big thing they don’t want you to know about?”. By “they”, he meant employers.
He reported that in his experience, most people are unaware that employees can take a job protected leave to care for loved ones.
Do you expect that lawyers know all things legal? In this situation, I’m lumped in the bucket of the unaware. I had no idea.
Each province has its own employment rules. A quick internet search took me to British Columbia’s Employment Standards Act that provide for compassionate care leave in British Columbia.
The leave is not restricted to a dying parent or grandparent. Other family members qualify.
What other family members?
I challenge you to come up with a person who is very close to you who would not apply!
There is a legal beast called the Family Member Regulation that provides an incredibly comprehensive list of close and not so close relatives.
And there is a catch-all: any individual you consider to be (or who considers you to be) “like a close relative”, whether or not there is anything of a blood, adoption, marriage or common law connection with them!
For ease of identification, I will refer to that person as your “family member”.
A certificate from a medical doctor or nurse practitioner is required.
The certificate must state that your family member has a serious medical condition with a significant risk of death within 26 weeks.
The purpose of the unpaid leave is “to provide care or support”, but there is no requirement for the medical certificate to say that care or support is medically required.
How long is the leave?
You are entitled to up to 27 weeks of unpaid leave over a 52-week period. The leave can be taken in one chunk or in one or more weeks at a time.
Of course, the leave ends on the death of your family member. More specifically, the end of the week in which your family member dies.
If your family member beats the odds and does not die after 52 weeks, you are entitled to another 27 weeks if you get another certificate.
The legislation protects employees by requiring your employer to place you, at the conclusion of your leave, in the same or a comparable position as you held before taking the leave.
The Provincial Government has a web page explaining this leave that can be found here (https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/forms-resources/igm/esa-part-6-section-52-1).
It gets better.
Employment Insurance (EI) can be available, for up to 26 weeks.
“Family member” is defined just as broadly in the EI, with a similarly broad catch-all, i.e. including “a person who is considered to be like a close relative”.
A beautiful thing about these benefits is that the 26 weeks of benefits can be shared with others, either at the same time or one after the other.
A dying grandparent could have several children, grandparents, and other people “considered to be like a close relative” sharing 26 weeks of EI benefits so that they can help care for and support them.
Unlike for unpaid leave, there is a prescribed medical certificate that must support an application for compassionate leave EI benefits.
In order to qualify, the doctor or nurse practitioner must certify not only that the family member has a serious medical condition with a significant risk of death within the next six months, they must also certify that the family member “requires the care and/or support of one or more family members over the next six months”.
That one certificate would be used for each EI applicant.
Thankfully, the certificate includes broad definitions of care and support, with support defined as “all psychological or emotional support that the patient needs because of their state of health”.
Care needs aside, I have trouble conceiving of anyone facing a significant risk of death within the next 6 months not needing emotional support.
I’m thankful to my buddy for suggesting that I shed light on these end-of-life matters. Please e-mail me with your questions or issues you would like me to write about.
Paul Hergott
Lawyer Paul Hergott began writing as a columnist in January 2007. Achieving Justice, based on Paul’s personal injury practice at the time, focused on injury claims and road safety. It was published weekly for 13 ½ years until July 2020, when his busy legal practice no longer left time for writing.
Paul was able to pick up writing again in January 2024, After transitioning his practice to estate administration and management.
Paul’s intention is to write primarily about end of life and estate related matters, but he is very easily distracted by other topics.
You are encouraged to contact Paul directly at paul@hlaw.ca with legal questions and issues you would like him to write about.