As of late, one of the most varied pieces of employment legislation in Ontario is the Employment Standards Act (“ESA”). Such ongoing changes have led to a lot of confusion for employers on what their legal obligations are and what their policies and practices should be. This is particularly the case in relation to “Personal Emergency Leave” (PEL) days and the fact that the 2019 amendments to the ESA have reduced rather than increased employee statutory entitlements.
What’s out the door?
PELs (10 days annually – two paid, 8 unpaid) and the liberal procedures for applying such entitlement, including for example their availability to employees’ discretionary use from minute one of their employment for various different permissible scenarios. PELS have been replaced outright by eight annual leave days divided into three separate and distinct categories – all unpaid unless provided for differently under employees’ employment contracts or employer’s workplace policies. The three new leaves as of Jan. 1, 2019 are available to employees who have been employed for at least two consecutive weeks with their employer. They include:
- three days of Sick Leave due to personal illness, injury or medical emergency (akin to PEL);
- three days of Family Responsibility Leave due to a family member’s illness, injury or medical emergency or due to an urgent matter concerning a family member; and
- two days of Bereavement Leave due to the death of a family member.
The prohibition against employers requiring employees to provide a doctor’s note or other evidence of entitlement for such leaves is also out the door. In doing so, employers can once again ask for information concerning:
- the duration or expected duration of the absence;
- the date the employee was seen by a health care professional; and
- whether the patient was examined in person by the health care professional issuing the note
However, it is still the case that employers cannot ask for information concerning the diagnosis or treatment of the medical condition.
Also gone is the equal pay for equal work prohibition against employers compensating part-time, casual or temporary workers differently than their full-time counterparts, except where based on prescribed exceptions not based on employment status. The other equal pay for equal work protections prohibiting employers from paying one employee at a rate of pay less than another on the basis of sex when they perform substantially the same kind of work in the same establishment remains.
What is unchanged this year?
Pregnancy and Parental Leave: Qualified employees are generally entitled to 17 unpaid weeks pregnancy leave (12 weeks in prescribed circumstances), and parental leave benefits of 61 to 63 unpaid weeks so long as the employee has been employed 13 weeks and otherwise qualify. Specifically, employees who took a pregnancy leaves are entitled to 61 weeks and employees who have not taken pregnancy leave 63 weeks.
Family Caregiver/Medical or Leave: Qualified employees are entitled up to 28 unpaid weeks to provide care and support to prescribed persons.
Child Death Leave: Regardless if the death is crime-related, qualified employees are entitled to 104 unpaid weeks if taken within the 105-week period of the death.
Crime-Related Child Disappearance Leave: Qualified employees are entitled to up to 104 unpaid weeks.
Critical Illness Leave: Qualified employee entitlement depends on the age of the ill person involved. For children it is up to 37 unpaid weeks in a 52-week period and up to 17 unpaid weeks in a 52-week period for an adult.
Domestic or Sexual Violence Leave: Qualified employees are entitled to 10 days up to 15 weeks of leave with the first 5 weeks being paid.
Organ Donor Leave: Qualified employees are entitled to up to 13 unpaid weeks, with the ability to extend.
Given that employers updated their policies and template hiring letters to accommodate the former rules, such policies and precedents should once again updated to be in line with the ESA and the new provision of flexibility afforded to employers under the most recent amendments to the ESA. In so doing, employers should republish the affected policies, draw them to their employees attention and ensure that employees understand the changes – particularly the fact that they can no longer have the discretion to use all of their leave days for a singular purpose like sick days.
Sheryl Johnson is a Partner at Sullivan Mahoney. She has extensive experience in representing clients in both the provincial and federal jurisdictions on all matters relating to employment, labour, administrative and employment related privacy, cannabis, Aboriginal and Indigenous law as well as in civil litigation. She is the author of Sexual Harassment in Canada: A Guide for Understanding and Prevention. Email: firstname.lastname@example.org