Bill 26 2016

An Act to amend the Employment Standards Act, 2000 in respect of leave and accommodation for victims of domestic or sexual violence and to amend the Occupational Health and Safety Act in respect of information and instruction concerning domestic and sexual violence

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Employment Standards Act, 2000

   1.  (1)  Subsection 1 (1) of the Employment Standards Act, 2000 is amended by adding the following definitions:

"domestic violence" means,

  (a)  an act of abuse between an individual and a current or former intimate partner, between an individual and a child who resides with the individual, or between an individual and an adult who resides with the individual and who is related to the individual by blood, marriage, foster care or adoption, whether the abuse is physical, sexual, emotional or psychological, and may include an act of coercion, stalking, harassment or financial control, or

  (b)  a threat or attempt to do an act described in clause (a); ("violence familiale")

"intimate partner" includes a spouse, boyfriend or girlfriend, dating partner, sexual partner or an individual with whom one has a relationship similar to the relationships enumerated in this definition; ("partenaire intime")

"sexual violence" means any conduct of a sexual nature or act targeting an individual's sexuality, gender identity or gender expression that is committed, threatened or attempted against an individual without the individual's consent, and includes sexual assault, sexual harassment, stalking, indecent exposure, voyeurism, sexual exploitation and sexual solicitation, and may include an act that occurs online or in the context of domestic or intimate partner relationships; ("violence sexuelle")

   (2)  Subsection 15 (7) of the Act is repealed and the following substituted:

Retain documents re leave

   (7)  An employer shall retain or arrange for some other person to retain all notices, certificates, correspondence and other documents given to or produced by the employer that relate to an employee taking a leave of absence under Part XIV for three years after the day on which the leave expired.

Retain documents re accommodation

   (7.1)  An employer shall retain or arrange for some other person to retain all documents given to or produced by the employer that relate to accommodation of an employee who requests or is given accommodation in respect of domestic violence or sexual violence under section 16.1 or 19.1 for three years after the day on which the accommodation ceased.

   (3)  The Act is amended by adding the following Part:

part VI.1
place of work

Domestic violence or sexual violence - accommodation

   16.1  (1)  If an employee or the employee's child has experienced domestic violence or sexual violence, and as a result the employee needs to work at a place of work other than where the employer has assigned the employee, the employer shall accommodate the employee's need unless it would cause the employer undue hardship, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

Exception

   (2)  Subsection (1) does not apply with respect to domestic violence or sexual violence committed by the employee.

Evidence

   (3)  An employer may require an employee who needs accommodation under subsection (1) to provide evidence reasonable in the circumstances that the employee needs accommodation.

Prescribed evidence

   (4)  For the purposes of subsection (3), evidence reasonable in the circumstances includes any evidence prescribed as reasonable in the circumstances and does not include any evidence prescribed as not reasonable in the circumstances.

   (4)  The Act is amended by adding the following section:

Domestic violence or sexual violence - accommodation

   19.1  (1)  If an employee or the employee's child has experienced domestic violence or sexual violence, and as a result the employee needs fewer hours of work or needs to work at different times than the employer has assigned the employee, the employer shall accommodate the employee's need unless it would cause the employer undue hardship, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

Exception

   (2)  Subsection (1) does not apply with respect to domestic violence or sexual violence committed by the employee.

Evidence

   (3)  An employer may require an employee who needs accommodation under subsection (1) to provide evidence reasonable in the circumstances that the employee needs accommodation.

Prescribed evidence

   (4)  For the purposes of subsection (3), evidence reasonable in the circumstances includes any evidence prescribed as reasonable in the circumstances and does not include any evidence prescribed as not reasonable in the circumstances.

   (5)  Subsection 49.1 (12) of the Act is repealed and the following substituted:

Leave under ss. 49.3, 49.4, 49.5, 49.6 and 50

   (12)  An employee's entitlement to leave under this section is in addition to any entitlement to leave under sections 49.3, 49.4, 49.5, 49.6 and 50.

   (6)  Subsection 49.3 (9) of the Act is repealed and the following substituted:

Leave under ss. 49.1, 49.4, 49.5, 49.6 and 50

   (9)  An employee's entitlement to leave under this section is in addition to any entitlement to leave under sections 49.1, 49.4, 49.5, 49.6 and 50.

   (7)  Subsection 49.4 (18) of the Act is repealed and the following substituted:

Leave under ss. 49.1, 49.3, 49.5, 49.6 and 50

   (18)  An employee's entitlement to leave under this section is in addition to any entitlement to leave under sections 49.1, 49.3, 49.5, 49.6 and 50.

   (8)  Subsection 49.5 (18) of the Act is repealed and the following substituted:

Leave under ss. 49.1, 49.3, 49.4, 49.6 and 50

   (18)  An employee's entitlement to leave under this section is in addition to any entitlement to leave under sections 49.1, 49.3, 49.4, 49.6 and 50.

   (9)  The Act is amended by adding the following section:

Domestic Violence or Sexual Violence Leave

Domestic violence or sexual violence leave

Definition

   49.6  (1)  In this section,

"child" means a child, step-child or foster child who is under 18 years of age.

Entitlement to leave - prescribed duration

   (2)  An employee is entitled to a leave of absence of a prescribed duration if the employee or the employee's child experienced domestic violence or sexual violence.

Entitlement to leave - reasonable duration

   (3)  If a duration is not prescribed for the purposes of subsection (2), the employee is entitled to a leave of absence of a reasonable duration.

Entitlement to leave - purposes

   (4)  An employee is only entitled to a leave of absence under subsection (2) or (3) if the employee uses the leave of absence for one or more of the following purposes:

    1.  To seek medical attention for the employee or the employee's child in respect of a physical or psychological injury or disability caused by the violence.

    2.  To obtain services for the employee or the employee's child in respect of the violence from a victim services organization, domestic violence shelter, rape crisis centre, sexual assault centre or other social services program or community agency.

    3.  To obtain psychological or other professional counselling for the employee or the employee's child in respect of the violence.

    4.  To relocate temporarily or permanently for the purpose of making future violence against the employee or the employee's child less likely.

    5.  To seek legal or law enforcement assistance for the employee or the employee's child, including preparing for or participating in any civil, criminal or administrative proceeding related to or resulting from the violence.

    6.  To do anything else prescribed by the regulations.

Exception

   (5)  Subsections (2) and (3) do not apply with respect to domestic violence or sexual violence committed by the employee.

Entitlement to pay

   (6)  An employee who takes a leave of absence under this section is entitled to be paid, but if the employee takes more than 10 days of leave under this section in a calendar year, the employee is only entitled to be paid during the first 10 days of leave in that calendar year.

Amount of pay for an employee with regular hours

   (7)  An employee's pay for each day under subsection (6) shall be the amount of regular wages that the employee would have earned if the employee had worked the employee's regular work day.

Amount of pay for an employee without regular hours

   (8)  If the employee does not have a regular work day, the employee's pay for each day under subsection (6) shall be the total amount of regular wages earned and vacation pay payable to the employee in the four work weeks before the week in which the employee began the leaves of absence under this Part, divided by 20.

Other paid leave under the employment contract

   (9)  An employee's entitlement to be paid under subsection (6) is in addition to any other entitlement to paid leave under the employee's employment contract.

Advising employer

   (10)  An employee who wishes to take leave under this section shall advise the employer in writing that the employee will be doing so.

Same

   (11)  If the employee must begin the leave before advising the employer, the employee shall advise the employer of the leave in writing as soon as possible after beginning it.

Leave deemed to be taken in entire days

   (12)  If an employee takes any part of a day as leave under this section, the employer may deem the employee to have taken one day's leave on that day for the purposes of this section.

Evidence

   (13)  An employer may require an employee who takes a leave under this section to provide evidence reasonable in the circumstances that the employee is entitled to the leave.

Prescribed sufficient evidence

   (14)  For the purposes of subsection (13), evidence reasonable in the circumstances includes any evidence prescribed as reasonable in the circumstances and does not include any evidence prescribed as not reasonable in the circumstances.

Leave under ss. 49.1, 49.3, 49.4, 49.5 and 50

   (15)  An employee's entitlement to leave under this section is in addition to any entitlement to leave under sections 49.1, 49.3, 49.4, 49.5 and 50.

   (10)  Part XIV of the Act is amended by adding the following section:

Confidentiality

   53.1  (1)  An employer shall keep confidential any information that relates to an employee's leave under this Part.

Exceptions

   (2)  Despite subsection (1), an employer may disclose the confidential information under one of the following exceptions:

    1.  The employee consents.

    2.  Someone who works for the employer as an employee or agent needs the information to do their job.

    3.  The disclosure is required by law.

Occupational Health and Safety Act

   2.  The Occupational Health and Safety Act is amended by adding the following section:

Information and instruction, domestic and sexual violence

   32.0.5.1  An employer shall ensure that every manager, supervisor and worker receives information and instruction about domestic violence in the workplace and sexual violence in the workplace.

Commencement and Short Title

Commencement

   3.  This Act comes into force three months after the day it receives Royal Assent.

Short title

   4.  The short title of this Act is the Domestic and Sexual Violence Workplace Leave, Accommodation and Training Act, 2016.

 

EXPLANATORY NOTE

The Employment Standards Act, 2000 is amended. An employee may take a leave of absence if they have experienced domestic or sexual violence. They may also take a leave of absence if their child has experienced domestic or sexual violence. They must use the leave for certain purposes, such as seeing a doctor, going to a victim services organization or meeting with a lawyer. The leave lasts for a reasonable time or for a time provided by regulations made under the Act. They are entitled to be paid for up to 10 days of leave in each calendar year. They are also entitled to reasonable accommodation with respect to their work hours and workplace.

The Occupational Health and Safety Act is amended. An employer must ensure that every manager, supervisor and worker receives information and instruction about domestic and sexual violence in the workplace.