Unpaid leave for organ donation

What employers need to know about Ontario's proposed legislation
By Daniel Pugen
|employmentlawtoday.com|Last Updated: 03/24/2009

On March 2, the Ontario government introduced Bill 154, An Act to amend the Employment Standards Act, 2000 (ESA) in respect of organ donor leave.

If passed, the bill would amend the ESA to create section 49.2, which would provide employees who undergo organ donation surgery with up to 13 weeks of unpaid leave from their employment.

The proposed leave of absence for organ donation is part of the government's "organ donor strategy" to increase the number of "living donors" and decrease the waiting time for an organ transplant.

The proposed new section contains many provisions that are similar to other leave of absence provisions in the ESA. The following is a brief summary of the proposed bill.

Questions and answers on Bill 154

Who qualifies for organ donor leave? Employees under the ESA qualify for the leave if they have been employed for at least 13 weeks with the employer and have undergone surgery for the purpose of organ donation.

Employees are entitled to the leave only if they have donated the following "organs":

•kidney
liver
•lung
•pancreas
•small bowel
•any "organ" or "tissue" prescribed by regulation.

When does the leave begin? An employee may begin her leave on the day that she undergoes the organ donation surgery or on an earlier day specified in a medical certificate.

Is the leave without pay? Yes.

How long does the leave last? The leave is for 13 weeks. However, it may be extended for a further period of up to 13 weeks if a physician issues a certificate stating that the employee is unable to perform her duties because of the organ donation.

The maximum leave period may be varied by regulation.

Does an employee have to give notice of the leave? Yes. An employee must give two weeks' written notice before beginning or extending the leave of absence. However, if the employee must begin or extend the leave before being able to advise you, the employee can provide written notice "as soon as possible" after beginning or extending the leave.

If an employee wishes to end her leave earlier than expected, the employee must provide you with at least two weeks' written notice before the day she wishes to end the leave.

Can employers request documentation evidencing entitlement to the leave? Yes. As with other leave of absence provisions under the ESA, you may require an employee to provide a medical certificate confirming that the employee has undergone, or will undergo, organ donation surgery.

What happens when the employee returns to work? As with other leave of absence provisions under the ESA, employers must reinstate an employee to the same position she held prior to the leave. If that position no longer exists, employers must provide the employee with a "comparable" position (at an equal or greater rate of pay).

What happens to employee benefits during the leave? The general provisions that apply to other leave of absence provisions under the ESA would apply to organ donor leave. Therefore, employees continue to participate in their benefit plans unless they elect, in writing, not to do so.

How does organ donation leave impact personal emergency leave days? An employee's entitlement to organ donation leave is in addition to any employee entitlement to personal emergency leave days under section 50 of the ESA. The days an employee is on an organ donation leave should not be counted as personal emergency leave days.

Lessons for employers

Entitlements under the ESA to leaves of absence continue to grow. If Bill 154 passes, organ donation leave would be the fifth leave of absence provision passed by the Ontario government in approximately five years. (The others are Family Medical Leave (s. 49.1); Personal Emergency Leave (s. 50); Emergency Leave, Declared Emergencies (s. 50.1); and Reservist Leave (s. 50.2).)

With the continued increase in leaves of absence provisions, it is important for employers to structure operations and staffing requirements to ensure minimal disruption in case of an employee leave of absence. It is also important to review internal policies and collective agreements to ensure they are consistent with the ESA leave of absence provisions.

Daniel Pugen is an associate in the McCarthy Tetrault’s Labour and Employment Group in Toronto. He represents management in a variety of labour and employment issues including employment standards, wrongful dismissal, labour arbitrations, occupational health and safety and labour and employment issues arising in corporate transactions. He can be reached at dpugen@mccarthy.ca or (416) 601-7955.

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