This article will cover the following topics in relation to bereavement leave in Ontario:

• What is bereavement leave?
• Is bereavement paid leave?
• Who qualifies for bereavement leave?
• How much bereavement leave are you entitled to?
• Who can you get bereavement leave for?
• When can you take bereavement leave?
• Employee rights during bereavement leave
• Do I need to notify my employer of my intended bereavement leave?
• Can employers request evidence of a bereavement leave?
• Does bereavement leave include uncles?
• Does spouse’s grandparent bereavement leave exist?
• Failure of the ESA to consider many important relationships
• Death of an individual not covered by the ESA
• How to expand your bereavement leave rights
• Employment contract with bereavement leave rights
• Not everyone is entitled to ESA bereavement leave

Bereavement leave is job protected time off due to the death of certain family members.

Bereavement is unpaid leave.

An employee who has been employed for at least 2 consecutive weeks.

Up to 2 days per calendar year. An employer may treat any part of a day taken for bereavement leave as representing a full day of bereavement leave. To clarify that means if you regularly work 9-5PM and you leave work at 2PM for bereavement leave the employer may treat that as a full day of bereavement leave.

If the employee has only been working for you less than 6 months but more than 2 weeks you cannot prorate the bereavement leave. Employees are entitled to 2 days bereavement leave per year minimum regardless of hiring date.

You cannot bank bereavement leave days for future years. An example of this would be if an employee did not take bereavement leave in 2015, 2016, 2017, 2018 but in 2019 after the death of a grandparent attempted to take 10 days bereavement leave. Bereavement leave resets at the end of each calendar year whether used or unused.

Bereavement leave in Ontario can be taken for the deaths of the following individuals according to Employment Standards Act (ESA) section 50.0.2(3):

1. “The employee’s spouse.
2. A parent, step-parent or foster parent of the employee or the employee’s spouse.
3. A child, step-child or foster child of the employee or the employee’s spouse.
4. A grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee’s spouse.
5. The spouse of a child of the employee.
6. The employee’s brother or sister.
7. A relative of the employee who is dependent on the employee for care or assistance.”

• At the time of death.
• To attend a funeral / memorial services.
• To attend to estate matters.

Employees cannot be fired, threatened, reprimanded or penalized in any way because they are taking bereavement leave.

Employees cannot be fired, threatened, reprimanded or penalized in any way because they are taking bereavement leave.

In many cases related to death employees will not be able to provide advanced notice. The ESA requires the employee to provide notice to the employer that they intend to take bereavement leave as soon as possible. I strongly recommend that you provide written notice so that you have proof that you have provided said notice. This can be done by email, text message or any other form of written communication.

An employer can ask that the employee provide evidence reasonable in the circumstances according to ESA section 50.0.2(5). The ESA requirement is rather vague and will depend on all the surrounding circumstances. 

Most employers will not request evidence for a short bereavement leave. In the case that your employer requests evidence usually a published obituary will suffice. If it does not suffice a death certificate, letter from the funeral home,  or legal letter should be sufficient.

Under the ESA bereavement leave does not include aunts and uncles.

You are entitled to take bereavement leave due to the death of a spouse’s grandparent.

The ESA bereavement leave fails to consider many relationships of significant importance to an employee. Nowhere does it provide for bereavement leave due to the death of a best friend, uncle, aunt, pet etc. It creates the peculiar situation where you may take bereavement leave for 2 days due to the death of a spouse’s grandparent but none for the death of your best friend.

In the case that a close friend, uncle, aunt etc. dies request in writing to take the day off to your employer. Most employers will be considerate provided the request is reasonable. In an ideal world you will have negotiated additional bereavement rights in your employment contract.

If you have a written employment contract it may specify the amount of bereavement leave you are entitled to. This amount cannot be less than the ESA minimums discussed in this article.

Some employees may wish to consider negotiating their bereavement leave rights in their employment contracts. This can be especially relevant for older employees who may find the 2 days of bereavement leave provided per year is insufficient. Additionally, employees may want to negotiate for paid bereavement leave in their employment contract as well.

If an employment contract provides bereavement rights superior to that of the ESA an employee is not entitled to 2 days of ESA bereavement leave plus the time in the contract unless otherwise specified.

For example: John has an employment contract entitling him to 5 days bereavement leave per year. If John takes 2 separate days of bereavement leave in a calendar year, he will have used 2 out of 5 of his contractual bereavement days as well as his entire ESA allotted bereavement leave.

Federal employee rights fall under the Canada Labour Code. The ESA does not cover unionized workers either. Unionized workers are generally subject to a collective bargaining agreement. Numerous other industries and jobs are not protected by ESA bereavement leave rights.

McMackin Law can help you with your Employment Law matters.