Ask Women and Work

Question: I want to take a leave of absence from my workplace. What are my legal rights around this? And how should I go about asking for it?

We asked Bay Ryley, employment and human rights lawyer and president of Ryley Learning, a DEI and workplace compliance e-learning company, to tackle this one:

The first question is: Why do you need or want to take a leave of absence?

Let’s start with the ‘need’ category. The laws are different in every province, but generally in Canada we have the right to things like pregnancy and parental leave, bereavement leave, organ donor leave, sick leave, family caregiver leave, domestic or sexual violence leave. If you need a leave of this sort, you can find information in your province’s employment standards legislation. You should also look at what your organization or collective agreement offers; it is often more generous than what the employment standards legislation says.

When asking for this kind of leave, you have a right to privacy. For example, if you need a leave related to illness, you do not need to say, nor would I recommend that you say, exactly what the illness is. For a longer leave, you may require medical documentation saying you require a leave for medical reasons. And if you go on a short-term or long-term disability, then you will need to qualify for that insurance. But that’s between you and the insurer; your employer does not have a right to know what kind of disease or problem it is.

People often feel like they should give more information to justify taking a leave. They may think the more information they give, the more sympathy they will get. Unfortunately, that’s often not the case. As a lawyer, I see lots of cases where people’s disability-related leaves are held against them. Weeks or months down the road, you may be pushed out the door. It’s important to know that in Canada you have a right to not be discriminated against because of a physical or mental disability, based on human rights legislation.

There’s also situations where you ‘want’ to take a leave of absence, rather than need one. You won’t be legally protected, but if you’re at a bigger organization, it may have policies on things like education leave. Maybe you want to do your masters in public administration and your company will support that. Or maybe your family wants to go to Spain for a year. Some companies may allow that kind of thing to keep their people happy and retain talent.

Another situation I see as an employment and human rights lawyer is where someone feels that they have to go on a leave of absence because they are in a toxic workplace. They may say, ‘I can’t tolerate that place any more. I’m being harassed. I need to go on a stress leave.’ In that scenario, ideally, I would say don’t leave. Why should you have to leave because this workplace is making you unwell?

If it’s a toxic workplace, you should be putting that forward as something the workplace needs to change, not you, unless you’re really unwell and can’t function. If the workplace can be corrected, that’s better than the victim absenting themselves.

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