Leave Respecting Domestic or Sexual Violence - Act Part 6, Section 52.5


Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information


Summary

This section explains the circumstances in which an employee is entitled to take leave respecting domestic or sexual violence.


Text of Legislation

52.5  (1) In this section:

"child" means a person under 19 years of age;

"domestic or sexual violence" includes

(a) physical abuse by an intimate partner or by a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,

(b) sexual abuse by any person,

(c) attempts to commit

(i) physical abuse by an intimate partner or by a family member, or

(ii) sexual abuse by any person, and

(d) psychological or emotional abuse by an intimate partner or by a family member, including

(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,

(ii) unreasonable restrictions on, or prevention of, financial or personal autonomy,

(iii) stalking or following, and

(iv) intentional damage to property;

"eligible person" means, with respect to an employee,

(a) a child who is under the day-to-day care and control of the employee by way of agreement or court order or because the employee is the child's parent or guardian,

(b) a person who

(i) is 19 years of age or older,

(ii) is unable, because of illness, disability or another reason, to obtain the necessities of life or withdraw from the charge of the person's parent or former guardian, and

(iii) is under the day-to-day care and control of the employee, who is the person's parent or former guardian, and

(c) a prescribed person;

"family member" means any of the following:

(a) with respect to a person,

(i) the spouse, child, parent, guardian, sibling, grandchild or grandparent of the person, or

(ii) an individual who lives with the person as a member of the person's family;

(b) any other individual who is a member of a prescribed class;

"intimate partner" means, with respect to a person, any of the following:

(a) an individual who is or was a spouse, dating partner or sexual partner of the person,

(b) an individual who is or was in a relationship with the person that is similar to a relationship described in paragraph (a).

(2) In addition to experiencing domestic or sexual violence in the circumstances described in the definition of "domestic or sexual violence" in subsection (1), a child who is an employee or eligible person also experiences domestic or sexual violence if the child is exposed, directly or indirectly, to domestic or sexual violence experienced by any of the following individuals:

(a) an intimate partner of the child;

(b) a family member of the child.

(3) If an employee or eligible person experiences domestic or sexual violence, the employee may request leave for one or more of the following purposes:

(a) to seek medical attention for the employee or eligible person in respect of a physical or psychological injury or disability caused by the domestic or sexual violence;

(b) to obtain for the employee or eligible person victim services or other social services relating to domestic or sexual violence;

(c) to obtain for the employee or eligible person psychological or other professional counselling services in respect of a psychological or emotional condition caused by the domestic or sexual violence;

(d) to temporarily or permanently relocate the employee or eligible person or both the employee and eligible person;

(e) to seek legal or law enforcement assistance for the employee or eligible person, including preparing for or participating in any civil or criminal legal proceeding related to the domestic or sexual violence;

(f) any prescribed purpose.

(4) If an employee requests leave under subsection (3), the employee is entitled during each calendar year to

(a) up to 5 days of paid leave,

(b) up to 5 days of unpaid leave, and

(c) up to 15 weeks of additional unpaid leave.

(4.1) A leave under subsection (4) (a) or (b) may be taken by the employee in one or more units of time.

(5) A leave under subsection (4) (c) may be taken by the employee in

(a) one unit of time, or

(b) more than one unit of time, with the employer's consent.

(5.1) Subject to subsection (5.2), an employer must pay an employee who takes leave under subsection (4) (a) an amount in money equal to at least the amount calculated by multiplying the period of the leave and the average day's pay determined by the formula

amount paid ÷ days worked

where
amount paid

is the amount paid or payable to the employee for work that is done during and wages that are earned within the 30 calendar day period preceding the leave, including vacation pay that is paid or payable for any days of vacation taken within that period, less any amounts paid or payable for overtime, and

days worked

is the number of days the employee worked or earned wages within that 30 calendar day period.

(5.2) An employer must pay an employee in a prescribed circumstance who takes leave under subsection (4) (a) an amount in money equal to at least the amount calculated in accordance with the regulations.

(6) An employee is not entitled to leave under this section respecting an eligible person if the employee commits the domestic violence against the eligible person.

(7) If requested by the employer, the employee must, as soon as practicable, provide to the employer reasonably sufficient proof in the circumstances that the employee is entitled to the leave.


Policy Interpretation

All employees are entitled to up to 5 days of paid leave and 5 days of additional unpaid leave to seek medical attention, counselling or other social or psychological services, or legal advice, or to seek new housing if they or an eligible person has experienced domestic violence. If necessary, an employee can take up to 15 weeks of additional unpaid leave. Employees can take intermittent hours, partial or full days. The leave does not have to be taken all at once.

The right to leave respecting domestic violence under this Part is available to all eligible employees regardless of how long they have been employed. The leave is a statutory entitlement, not something that may or may not be granted at the discretion of the employer.

Employees must request leave from their employer and follow the normal processes for requesting leave. Advance notice is not required.

Employers have the right to be satisfied of the entitlement to the leave to better support the employee, as well as to ensure the leave is administered properly. If the employer asks for information to support the leave, the employee must provide it as soon as practicable – it does not have to be right away.

Calculating an “average day’s pay”

An average day’s pay is calculated by dividing the amount paid or payable in the 30 calendar days before the leave by the number of days worked.

Terms and Conditions of Employment Protected

Section 54 provides that an employer cannot terminate an employee or change a condition of employment without the employee's written consent as a result of a leave under this Part. See also section 56 for an explanation of the effects of leave under this Part on employment and benefit payments. If the employer's business operations have been suspended or discontinued at the time the employee's leave ends, the employer must comply with s.54(2) when operations resume.

In the event of a contravention under this Part of the Act, the director may order a remedy in a determination under s. 79(2). The determination will include an escalating monetary penalty, subject to s.98.

Employees Covered by a Collective Agreement

Section 3 provides that parties to a collective agreement may not negotiate terms and conditions that do not meet or exceed the standards set out in section 52.5. Where there is a collective agreement, the enforcement of matters relating to section 52.5 is through the grievance procedure, not through the enforcement provisions of the Act.

Related Information

ESA