May 29, 2020
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Domestic or Sexual Violence Leave

Domestic or Sexual Violence Leave = Absence Code #120 in SmartFind Express. Submit a Leave of Absence Form at the earliest opportunity.

Rights during and at the end of Domestic or Sexual Violence Leave

Employees who take Domestic or Sexual Violence Leave have the same rights as employees who take Pregnancy or Parental Leave. For example, an employer cannot threaten, fire or penalize in any other way an employee for taking, planning on taking, being eligible or being in a position to become eligible to take Domestic or Sexual Violence Leave.

Domestic or Sexual Violence Leave is a statutory, job-protected leave of absence provided for all employees including teachers, in accordance with the terms of the Ontario Employment Standards Act (ESA) section 49.7. Using this leave does not require the employee to access sick leave or any other leave available to them.

What this statutory leave provides

Domestic or Sexual Violence Leave provides up to 10 days and 15 weeks in a calendar year of time off work to be taken for specific purposes when an employee, or an employee’s child, has experienced or been threatened with domestic or sexual violence. The first five days of this leave taken in each calendar year are paid, and the rest of the time off work is unpaid.

Eligibility

Employees who have been employed by their employer for at least 13 consecutive weeks are entitled to domestic or sexual violence leave if the employee or the employee’s child* has experienced or been threatened with domestic or sexual violence, and the leave is taken for any of the following purposes:

·         To seek medical attention for the employee or the child of the employee because of a physical or psychological injury or disability caused by the domestic or sexual violence.

·         To access services from a victim services organization for the employee or the child of the employee.

·         To have psychological or other professional counselling for the employee or the child of the employee.

·         To move temporarily or permanently.

·         To seek legal or law enforcement assistance, including making a police report or getting ready for or participating in a family court, civil or criminal trial related to or resulting from the domestic or sexual violence.

·         Such other purposes as may be prescribed.

Child* means a child, step-child, child under legal guardianship or foster child under 18 years of age.

Note:  An employee is not entitled to this leave if the employee committed the domestic or sexual violence.

Pay during Domestic or Sexual Violence Leave

Only the first five days of domestic or sexual violence leave taken in a calendar year must be paid by the employer. The rest of the leave is unpaid. The first five days is paid whether the employee takes leave from the 15-week entitlement, or the 10-day entitlement. For the paid days, the employer shall pay the employee the wages the employee would have earned had they not taken the leave.

Length of Domestic or Sexual Violence Leave

Employees are entitled to up to 10 full days of Domestic or Sexual Violence Leave every calendar year, whether they are employed on a full or part-time basis.

There is no pro-rating of the 10-day entitlement. An employee who begins work partway through a calendar year is still entitled to 10 days during the remainder of that calendar year.

The 10 days of domestic or sexual violence leave do not have to be taken consecutively. Employees cannot carry over unused domestic or sexual violence leave days to the next calendar year.

Employees can take domestic or sexual violence leave in part days, full days, or in periods of more than one day. If an employee takes only part of a day as domestic or sexual violence leave, the employer can count it as a full day of leave. In cases where the employee takes part of a day, the employer still has to pay the employee for any part of the day that the employee worked.

Employees are also entitled to take up to 15 weeks of domestic or sexual violence leave within a calendar year for the purposes set out above. A “week” is defined as running from Sunday to Saturday. The 15 weeks can be taken consecutively or separately.

The employee may take leave for periods less than a full week (for example, single days, at the beginning, middle or end of a week), but if they do, they are considered to have used up one week of their 15-week entitlement. If the employee is on leave for two or more periods within the same week (for example, on leave on Monday and Thursday of the same week), only one week of the 15-week entitlement is used up.

The employer cannot require the employee to take an entire week of leave if the employee only wants to take leave for a single day(s), the employer cannot prevent the employee from working prior to taking a single day(s) of leave during a week, and the employer cannot prevent the employee from returning to work after a single day(s) of leave during the week.

Advising the employer

An employee who requires Domestic or Sexual Violence Leave shall advise the employer in writing that they will be doing so.  If an employee must begin such a leave before advising the employer, the employee shall advise the employer of the leave in writing as soon as possible after beginning it.

Evidence of eligibility
An employer may require an employee to provide evidence “reasonable in the circumstances” that they are eligible to take Domestic or Sexual Violence Leave. What is reasonable in the circumstances will depend on the facts of the particular situation, such as the duration of the leave, whether there is a pattern of absences, whether any evidence is available, and the cost of obtaining the evidence.

Right to confidentiality

An employer shall ensure that mechanisms are in place to protect the confidentiality of records given to or produced by the employer that relate to an employee taking a Domestic or Sexual Violence Leave under the ESA. Nothing prevents an employer from disclosing a record where the disclosure is authorized or required by law.