Leave entitlements for probationary employees

When an employee still on probation requests leave
By Stuart Rudner
|Canadian Employment Law Today|Last Updated: 07/18/2018

Question: Do statutory leave entitlements apply to probationary employees? Can an employment offer include a provision that probationary employees are not entitled to any type of leave (bereavement, family, vacation, etc.) for the duration of their probation?

Answer: All employees are entitled to statutory leaves, but some have eligibility requirements that include a minimum length of employment. Accordingly, whether or not an employee is entitled to a particular statutory leave often depends on her length of service with the company, regardless of whether or not the employee is a probationary employee. As a result, an employment offer cannot include a provision that probationary employees are not entitled to any type of leave for the duration of their probation, since excluding the leaves would be in breach of employment standards legislation such as Ontario's Employment Standards Act, 2000 (ESA). Contracting out of the ESA is prohibited and any attempts to do so would be unenforceable.

The following are examples of statutory leave entitlements in Ontario, for example, and how they may affect probationary employees (other jurisdictions have varying but in many cases similar types of leave):