Leaves of Absence: Managing Statutory Entitlements and Human Rights Obligations in Alberta

Key Considerations for Employers

Alberta employers typically understand that they must comply with statutory obligations set out in the Employment Standards Code (Code), including providing eligible employees with leaves of absence in specific circumstances. However, a common pitfall for employers is failing to consider that separate and additional employer obligations may arise in the same circumstances under the Alberta Human Rights Act (Human Rights Act). While this bulletin focuses on Alberta legislation, the same principles apply across Canada’s common law provinces.

This bulletin outlines the intersection between two overlapping but separate obligations of employers. That is, the requirement to provide employees with statutory entitlements, while also reasonably accommodating employees from a human rights perspective.

Intersection Between the Code and the Human Rights Act

The Code prescribes certain unpaid job-protected leaves of absence that employees may be entitled to in specific circumstances. The prescribed length of these protected leaves ranges from half a day to 104 weeks. After the expiration of a leave, the Code requires employers to return the employee to the same (or comparable) position. 

It is important to remember, however, that at the end of the statutory leave, employers may be required to extend the employee’s leave of absence despite exhaustion of their statutory entitlement under the Code.

The need for an extended leave arises when the reason for the leave of absence is connected to one or more of the protected grounds set out by the Human Rights Act (i.e., race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status and sexual orientation).

Considering whether an employee’s leave of absence could be related to a protected ground is critical, as failing to accommodate an employee creates human rights risk for the employer, notwithstanding that all obligations under the Code are being met. Depending on the circumstances, permitting the employee to remain on a leave of absence (despite exhaustion of the employee’s Code entitlement) may be the most appropriate human rights accommodation.

Common Scenarios for Employers

A few of the most common examples of employee circumstances that result in an overlap of the job-protected leaves of absence prescribed by the Code and protected grounds under the Human Rights Act include (but are not limited to):

• Physical or mental disability: An employee may require additional time off work to recover or seek treatment for a physical or mental illness following completion of a “personal and family responsibility leave”
• Physical disability: An employee may require additional time off work to rehabilitate after a surgery, following completion of a “long-term illness and injury leave”
• Physical disability and gender: A pregnant employee may require additional time off work to attend medical appointments leading up to and/or following a “maternity leave” and/or “parental leave”
• Mental disability: An employee may require additional time off work for mental health reasons after the loss of a spouse, following completion of a “bereavement leave”
• Family status: An employee may require additional time off work to care for a sick family member or child following completion of a “compassionate care leave” or “critical illness leave”

Depending on the context and availability of other appropriate accommodation options (e.g., reduced duties, modified work schedule or placing the employee in a different position), employers may be required to provide an employee with a leave of absence greater than the duration prescribed by the Code in order to fulfill the human rights duty to accommodate up to the point of undue hardship.

In light of the above, when providing statutory leaves, employers should also consider their human rights obligations.

For more information, please contact the authors or any other member of our Employment & Labour group.