Changes to Ontario Employee Personal Emergency Leave, January 2018

With the recent updates to the Ontario Employment Standards Act, approved in November 2017, significant changes to the “Personal Emergency Leave” (“PEL”) provisions were introduced.

These changes will require most businesses to update employment policies and may also require an update to employment agreements. Schedule a consultation with Momentum to discuss what changes you will need to make!

In summary, PEL requirements for employers are now as follows:

  • Most employees now have the right to take up to 10 days of job-protected leave each year for reasons such as illness, injury, death and certain emergencies and urgent matters.
  • This right to 10 days of PEL arises as soon as employment begins.
  • Once the employee has worked for one week, the first two days of PEL each year are to be paid.
  • Reasons for an employee to use PEL include for personal reasons, as well as reasons relating to certain family members.
  • The entitlement to PEL is for a calendar year and there is NO pro-rating of that entitlement for an employee who begins or ceases work part way through a year.
  • In most cases, an employer may NOT require a medical note for the use of PEL for personal illness, injury or medical emergency or the illness, injury or medical emergency of a specified relative.
  • “Urgent matters” for use of PEL include a broad range of matters which go beyond illness or injury.

Some further details on these important changes:

Reasons PEL may be taken:

An employee may take PEL for personal illness, injury or medical emergence, or for death, illness, injury, medical emergency or urgent matter relating to the following family members:

  • spouse (includes both married and unmarried couples, of the same or opposite genders)
  • parent, step-parent, foster parent, child, step-child, foster child, grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee's spouse
  • spouse of the employee's child
  • brother or sister of the employee
  • relative of the employee who is dependent on the employee for care or assistance

The reason for the PEL isn’t relevant – i.e. even if the employee or the relevant family member was reckless or careless, the PEL is an entitlement. PEL can be used for pre-planned surgery (even if it isn’t a medical emergency), if the surgery is related to an illness or injury and is medically necessary.

What is an “Urgent matter”:                                                                                         

PEL can be used for “Urgent Matters” which are not necessarily related to an illness or injury. The Ministry of Labour advises that the event should be “unplanned or out of the employee’s control, and can cause serious negative consequences, including emotional harm, if not responded to.”

The Ministry provides the following examples of an “urgent matter”

  • The employee’s babysitter calls in sick.
  • The house of the employee’s elderly parent is broken into, and the parent is very upset and needs the employee’s help to deal with the situation.
  • The employee has an appointment to meet with their child’s counsellor to discuss behavioural problems at school. The appointment could not be scheduled outside the employee’s working hours.

The Ministry also provides the following examples of events that do not qualify as an urgent matter:

  • An employee wants to leave work early to watch his daughter’s soccer game.
  • An employee wants the day off to attend her sister’s wedding as a bridesmaid.

Length and Use of Leave

The following rules apply to use of PEL:

  • Both full time and part time employees are entitled to 10 days of PEL per year.
  • The 10 days of PEL do not have to be taken consecutively and can be used a part days, full days or multiples of more than one day.
  • If an employee only uses a “part day” for PEL, the employer can (but is not required to) count the part day as an entire day for the PEL entitlement, but must still pay the employee for any part of the day which is actually worked.
  • Unused PEL cannot be “carried over” to the next calendar year.
  • If an employee takes paid PEL days, and is paid either partially or fully on a commission basis, the employee is entitled to either the hourly rate (if paid partially on commission) or the minimum wage (if paid fully on commission). The employer is not required to pay the employee an amount reflecting the commission which would have been earned.
  • Where an employee takes PEL for a shift which would have otherwise included overtime pay, a shift premium, or premium pay for a public holiday, the employee is only entitled to be paid the regular wage for that shift, not any type of premium pay.
  • An employee is required to provide notice to the employer for the use of PEL before starting the leave, unless that is not possible. However, failure to provide the notice does not invalidate the PEL entitlement.

Employers are strongly encouraged to have written policies on the use of PEL and apply those policies consistently to all employees.

Proof of Entitlement

A significant change is the new prohibition on requiring medical notes for the use of PEL. An employer now cannot require a medical note to establish the right to PEL for reasons due to personal or family illness, injury of medical emergency.

For other uses of PEL, an employer is entitled to require evidence which is “reasonable in the circumstances” that the employee is eligible for personal emergency leave. What is “reasonable in the circumstances” will depend, but the Ministry notes factors to consider such as the length of the leave, whether there is a pattern of absences, whether evidence is even available and the cost of obtaining that evidence.

Some employers are concerned that the new rules will make regular absences for particular shifts routine and difficult to plan for. For example, if a restaurant typically has one or two days per week on which there are fewer customers, there is a concern that those shifts will regularly become shifts on which staff use PEL, creating staffing challenges. Workplaces should carefully consider how to address these potential situations through incentives and remember the retribution against an employee for exercising rights under the ESA is prohibited. If issues begin arising around use of PEL, employers are encouraged to discuss plans with an HR professional or legal team.

Other leaves

The Employment Standards Act also provides for several other types of job-protected leave. Each of the family caregiver leave, family medical leave, domestic or sexual violence leave, critical illness leave, child death leave and crime-related child disappearance leave have different lengths and eligibility and should be carefully reviewed as applicable. An employee could be entitled to more than one leave (including PEL) for the same event – each entitlement is separate.

Interaction with Contract Entitlements:

Some employment contracts (written or by continuing practice) might already include certain benefits which overlap with the ESA standards. If that is the case, the ESA PEL requirements can be included in those benefits, and not be added on top of those benefits, but policies and contracts may need to be amended for clarity.

For example, if an employer already provided 5 days of paid sick leave per year, the ESA PEL requirements would not require an additional two paid days. However, if the employer had previously limited the use of those paid days to use for employee illness, the employer will now need to extend at least two of those two paid days to use for all of the entitlements for PEL, provided for in the ESA. Also, Employment Agreements which specify that paid leave entitlements accrue at a particular rate throughout the year also need to be reviewed, as the PEL entitlements are for each calendar year and all accrue immediately.

Employment Agreements should be carefully reviewed and likely revised, to ensure that the intended outcome for the employer is achieved.

How Momentum Can Help: Schedule a consultation with Momentum to review your employment contracts and policies to see what changes need to be made to ensure compliance with the new rules.

Disclaimer:

The material and information in this article are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this article or its links, or the application of the information to your situation. No person should act or refrain from acting in reliance on any information found in this article. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or Momentum Business Law.