In January 2018, the Ontario Employment Standards Act, 2000 (the “ESA”) changed significantly with the passing of Bill 148: Fair Workplaces, Better Jobs. While the most talked-about change has been an increase in the minimum wage, there were some other notable revisions, including the expansion of Personal Emergency Leave (PEL) entitlement.
Personal Emergency Leave may be used for a number of reasons, including an employee’s own illness, an illness or death in his or her family, or an urgent family matter such as a child care provider being unavailable, a meeting at a child’s school, or tending to the care of a family member. In the past, only employees in Ontario workplaces with fifty or more workers were entitled to ten personal days under the ESA. Under the revised ESA, however, all employees are now entitled to these ten days, and employers must provide payment for a minimum of two of them. Perhaps most significantly, the new provisions generally bar employers from requesting a doctor’s note before granting these days.
Although personal illness is not defined under the provisions of PEL time in the ESA, the Ontario Ministry of Labour has clarified that it can range from a medical emergency to the common cold. PEL may be used for medical appointments for the treatment of an existing medical issue, but not for general check-ups. Employees may also choose to use this time for planned medical care such as surgery. The ten days may be used all at once or in increments.
Family members are defined broadly, ranging from the employee’s spouse to a step-grandparent of the employee’s spouse. Essentially, an employee can take PEL with respect to any of her or her spouse’s relatives.
The most controversial and potentially challenging amendment relates to evidence. Section 50(13) holds that employers, “shall not require an employee to provide a certificate from a qualified health practitioner as evidence” of his entitlement to the leave. “Qualified health practitioner” is defined as a doctor, nurse or psychologist.
It is important to note that while an employer cannot require a doctor’s note, this does not mean an employer cannot request one; there will simply be no recourse against an employee who refuses to provide it. Employers must act as reasonably as possible and tailor any requests for evidence to the unique circumstances of the employee’s absence. If, for example, an employee takes one day off because he or she is not feeling well, it may be best to take them at their word. If the employee has a pattern of not feeling well, however, it may be reasonable for their employer to request a doctor’s note.
Employers must ensure that their workplace policies and employment contracts provide minimum entitlements of PEL or a greater benefit. All Ontario employers are strongly encouraged to review their policies with an Employment Lawyer to ensure that they are compliant with the new provisions of PEL.
Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.
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