Ontario Proposes Support For Organ Donors
Ontario is introducing legislation that would, if passed, amend the Employment Standards Act, 2000 (ESA) to provide unpaid job-protected leave for employees who donate certain organs to another individual.
FEATURES OF THE PROPOSED LEAVE:
- The leave would apply to persons who are donating all of part of the following organs: kidney, liver, lung, pancreas and small bowel
- Donors would have to be employed by the same employer for at least 13 weeks in order to be entitled to the leave All employees covered by the ESA would be eligible for the leave, regardless of the size of their employer
- Donors would have to provide a medical certificate in support of their entitlement to the leave if the employer requests one
- The employee would be entitled to extend the leave for an additional period of up to 13 weeks (i.e., the total length of leave could be up to 26 weeks) if a medical certificate confirmed that the employee is not yet able to perform their duties
- Donors would have to provide at least two weeks' written notice before starting the leave or, if such notice is not possible in the circumstances, provide notice as soon as possible
- The leave would begin on the day that the surgery to donate the organ takes place. If needed, a donor may begin the leave at an earlier time as specified in a medical certificate. (The length of the leave to which a donor would be entitled would remain the same regardless of when it began.)
- Employers providing certain types of benefit plans (e.g. pension) would have to continue to make their contributions during the leave, if the employee continues to pay their contributions, if required
- Donors' seniority and length of service credits would continue to accumulate during the leave, and
- The leave provisions would be enforced in non-unionized workplaces by the Ministry of Labour with the same remedies for contravention as other leaves. In unionized workplaces, enforcement would generally be under the applicable collective agreement.
CURRENT LEAVES UNDER THE EMPLOYMENT STANDARDS ACT
The ESA currently provides the following unpaid job-protected leaves:
Pregnancy leave: Eligible pregnant employees are entitled to up to 17 weeks of unpaid leave.
Parental leave: Eligible new parents are entitled to up to 35 weeks' unpaid leave (if pregnancy leave is also taken) or 37 weeks of leave (if pregnancy leave is not taken).
Personal emergency leave: Some employees have the right to take up to 10 days of unpaid job-protected leave each calendar year due to illness, injury and certain other emergencies and urgent matters.
Family medical leave: Employees may take up to 8 weeks of unpaid leave to provide care or support to certain family members (or persons like a family member) who are at a significant risk of dying within a period of 26 weeks.
Declared emergency leave: Employees are entitled to an unpaid leave of absence if the employee is not performing the duties of their position because of a declared emergency and certain specified reasons.
Reservist leave: Eligible employees are entitled to an unpaid leave of absence for the period necessary to engage in the operation for which the employee⁄reservist is deployed.
ORGAN DONATION STRATEGY
- In late 2006, the Citizens Panel on Increasing Organ Donation (Panel) was established to survey the public's views about organ donation and ways to improve and increase organ donation in Ontario.
- The Panel heard extensively from living organ donors. None regretted donating and all would do it again in the same circumstance. However, each and every one experienced hardships they had not anticipated when they were making the decision to donate.
- The Panel made numerous recommendations about how to potentially increase organ donations, including that the government enact legislation to guarantee job security for living organ donors.
- In August 2007, the Premier announced up to $4 million to implement an Organ Donation Strategy based on the recommendations from the Panel.
- The announcement stated that in order to encourage more living donations through increased supports, the government would, among other initiatives, "consult with employer and labour groups on providing job security for living donors with legislative protection."
- As part of the organ donation strategy, the government launched the Program for Reimbursing Expenses of Living Organ Donors (PRELOD).
- The purpose of PRELOD is to remove potential financial disincentives to living organ donation by establishing a fund to reimburse living organ donors for reasonable, actual out-of-pocket expenses and lost income associated with their organ donation.
- Living donation has many advantages such as reduced wait times, reduced patient suffering, increased transplant success, and reduced health costs.