To say that the last couple of years have put a mental strain on workers is something of an understatement. As a result of the COVID-19 pandemic, many Ontarians are reporting stress and burnout, and many are considering taking stress leave.
What is stress leave?
Ontario’s Employment Standards Act, 2000 (the ESA) gives employees the right to take up to 3 days of unpaid sick leave in a calendar year provided that they have completed at least two full weeks with their current employer. This unpaid leave does not have to be used only for physical illness – it can also be used for mental conditions or stress leave in order to cope with stress, anxiety, or burnout.
During this sick or stress leave, the job status of the employee is protected, and employers cannot fire or discipline employees for pursuing this leave. Employees may wish to apply for Employment Insurance Sickness Benefits during this time in order to receive some compensation while they are off sick – for a period of up to fifteen weeks.
What if an employee requires more than 3 days off for stress leave?
In most cases, three days of stress leave is not going to be enough to help them restore their mental health. The good news is that employees are still protected under the Ontario Human Rights Code (the Code) and employers are required to accommodate their disability provided that doing so does not cause undue hardship.
In this case, the employee should obtain documentation from a doctor or medical professional which supports them taking time off – or reduced hours or modified duties – for stress.
If the employee’s stress related health conditions are severe enough that they require more than fifteen weeks of stress leave, the employee should consider applying for Canada Pension Plan Disability benefits – a program under CPP which workers may use to apply for benefits up to the age of 65.
Additionally, if the employee can show that their mental health condition was caused directly by a workplace incident, they may be able to collect Workplace Safety Insurance Benefits (WSIB).
Private benefits programs for stress leave in Ontario
In addition to government provided benefits, many private health benefits offered by employers can also provide assistance to employees struggling with their mental health. These include:
- Short Term Disability (STD) Benefits – financial assistance for a short period of time if an employee cannot perform their regular duties due to illness or injury (usually up to six months).
- Long Term Disability (LTD) Benefits – financial assistance (usually for a period of up to two years) for an employee that cannot perform their regular duties due to disability.
Both STD and LTD benefits can be quite expensive to administer and as such, the insurance company or the employer may challenge an employee’s eligibility to make an STD/LTD claim. Therefore, it is extremely important that the employee have sufficient medical documentation and seek the support of a specialist (such as a psychiatrist) who can confirm their medical condition.
If the employee is denied benefits even with ample medical support and documentation, they may have grounds to take legal action against the employer or their insurer for damages.
It is also important for the employee to understand, however, that their employer is not required to hold their position for them indefinitely, as at some point, doing so could be considered undue hardship for the employer.
Are you considering stress leave?
If you are considering taking stress leave from your place of employment, you have rights that are protected under the Ontario law. It is critical, however, that you seek out professional medical diagnosis and treatment in order to qualify for stress leave and to be eligible to collect financial assistance while you are recovering.
How Minken Employment Lawyers Can Help
Do you have questions about your rights as an employee or do you believe your rights have been violated? Are you dealing with a stress leave situation at your workplace and require legal guidance to avoid dispute or require representation as an employer? If so, contact us today to schedule an appointment with one of our experienced employment lawyers or call us at 905-477-7011.
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Please note that this article is for informational purposes only and does not constitute legal advice.
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