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Bill 148 Update: Significant Amendments to Personal Emergency Leave and the Introduction of Domestic or Sexual Violence Leave

Fasken
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Bill 148 Update Bulletin

Its official! The Fair Workplaces, Better Jobs Act, 2017 (more commonly referred to as "Bill 148") has received Royal Assent and is now in force. As we have reported previously, Bill 148 makes a number of significant changes to the Employment Standards Act, 2000 (the "ESA"), the Labour Relations Act, 1995, and the Occupational Health and Safety Act

With regards to Part XIV of the ESA - Leaves of Absence - Bill 148 brings about important changes to Personal Emergency Leave entitlements and the introduction of Domestic or Sexual Violence Leave.

All employers with operations in Ontario ought to be aware of these changes and are advised to review existing policies regarding leaves of absence entitlements to ensure compliance with the ESA. In many cases, policies will need to be revised to address Bill 148 and, specifically, the overlap between existing leave entitlements (e.g. paid sick time) and paid personal emergency and/or domestic or sexual violence leave.

Personal Emergency Leave

Prior to January 1, 2018, only those employees who work for employers that regularly employ at least 50 employees are eligible for Personal Emergency Leave under the ESA. Eligible 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.

The scope of Personal Emergency Leave is quite broad.  It can be used for any of the following reasons:

  • A personal illness, injury or medical emergency;
  • The death, illness, injury or medical emergency of a family member; or
  • An urgent matter that concerns a family member.

A "family member" is defined by the ESA as:

  • The employee's spouse;
  • A parent, step-parent or foster parent of the employee or the employee's spouse;
  • A child, step-child or foster child of the employee or the employee's spouse;
  • A grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee's spouse;
  • The spouse of a child of the employee;
  • The employee's brother or sister; or
  • A relative of the employee who is dependent on the employee for care or assistance.

Effective January 1, 2018, Bill 148 amends Personal Emergency Leave entitlements in a few very significant ways:

  • All employees (regardless of the size of the employer) will now be eligible for Personal Emergency Leave;
  • The 10-day entitlement will be maintained but employees with at least one week of service will now be entitled to paid leave for the first 2 personal emergency days; the remaining 8 days will be unpaid; and
  • Employers will no longer be permitted to require a certificate from a qualified health practitioner.

These amendments not only expand the breadth of Personal Emergency Leave, but they also limit, to an extent, an employer's ability to verify the employee's entitlement by requiring a medical note. Bill 148 does not, however, prohibit an employer from requesting a medical certificate, provided the absence is due to illness or injury as opposed to some other non-medical emergency. Of course, if the employee refuses to provide a medical certificate, he or she cannot be denied the leave.

Notwithstanding these changes, employers do retain the right to require evidence of entitlement to Personal Emergency Leave. In other words, although an employer cannot require an employee to produce a certificate from a qualified health practitioner, there is nothing to prevent the employer from requesting other forms of evidence that are reasonable in the circumstances.

For example, where an employee requests Personal Emergency Leave to attend a scheduled medical appointment, there is no reason why the employer cannot request a letter from the physician's receptionist confirming that the employee, in fact, attended the appointment. If the employee seeks medical attention at a hospital, the employer may request a copy of the in-take or admission form as opposed to a medical certificate from the treating physician. Employers may also request copies of parking receipts (at a doctor's office, for example), pharmacy receipts for prescription or even non-prescription drugs, etc.

Suffice it to say, there are numerous examples of evidence short of a medical certificate that can be requested by the employer to substantiate the employee's entitlement. Of course, each scenario should be considered on a case-by-case basis as there is simply no one-size-fits-all solution.

Of note, employers will still be permitted to require a medical certificate confirming that an employee is fit to return to work. There is an important distinction between requiring a doctor's note to confirm that an employee is capable of returning to work and performing the essential duties of the job versus a doctor's note that is required to confirm entitlement to Personal Emergency Leave. The restriction is limited to the latter.

Lastly, employers may still require a medical certificate to substantiate absences from work for the purposes of paid sick or personal day entitlements over and above the legislated minimums. For example, if an employer provides up to 5 paid sick days per calendar year, it may require an employee to provide a note from a physician in order for the employee to receive paid leave for days 3, 4, and 5. If the employee fails to submit a medical certificate for these additional paid sick or personal days, the employer may refuse to pay the employee (subject to the requirements of the actual sick or personal day policy) but must still grant unpaid Personal Emergency Leave in accordance with the ESA.

Bill 148 also addresses the calculation of an employee's "pay" for the purposes of paid Personal Emergency Leave. It states that the employer shall pay the employee the wages the employee would have earned had they not taken the leave. If, for example, the employee was only scheduled to work 4 hours on the day he or she was absent, the employer must pay the employee the regular wages he or she would have earned during that 4-hour shift. If a second paid personal emergency day is used at some later time on a day when the employee would have worked 8 hours but for the leave, the employer must pay his or her regular wages for 8 hours.

With regards to partial days, Bill 148 provides that if an employee takes any part of a day as paid or unpaid Personal Emergency Leave, the employer may count the day as one full day of leave.

Domestic or Sexual Violence Leave

Effective January 1, 2018, an employee who has been employed for at least 13 consecutive weeks will be entitled to up to 10 individual days of leave and up to 15 weeks of leave if the employee or their child experiences domestic or sexual violence or the threat of domestic or sexual violence. 

The 10 days can be taken a day (or part of a day) at a time (e.g. to attend medical appointments). 

The 15 weeks (or partial weeks) of leave are intended to address situations that require more time (e.g. to make moving arrangements). The 15 weeks do not have to be taken continuously. 

Of note, the first 5 days of such leave, each calendar year, will be paid. The balance of the leave will be unpaid. 

Domestic or sexual violence leave is available in the following circumstances:

  • To seek medical attention for the employee or the child of the employee in respect of a physical or psychological injury or disability caused by the domestic or sexual violence;
  • To obtain services from a victim services organization for the employee or the child of the employee;
  • To obtain psychological or other professional counselling for the employee or the child of the employee;
  • To relocate temporarily or permanently; or
  • To seek legal or law enforcement assistance, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic or sexual violence.

An employee may not take this type of leave if the domestic or sexual violence was committed by the employee.

Similar to Personal Emergency Leave, the employer must pay the employee the wage the employee would have earned had they not taken the leave.

Employees are required to advise the employer that they are taking leave in advance or as soon as possible. 

The employer may require the employee to provide evidence that is reasonable in the circumstances of the employee's entitlement.  Although the Ministry of Labour has not yet provided guidance in terms of what type of evidence might be reasonable in circumstances of domestic or sexual violence, there is no prohibition on requesting a medical certificate to substantiate the employee's entitlement to the leave like there is in the case of Personal Emergency Leave.

Finally, in the event the employer does require evidence of the employee's entitlement to the leave, the employer must ensure there are mechanisms in place to protect the confidentiality of records given or produced by the employer that relate to the employee taking this type of leave.

Use it or Lose It

Personal Emergency Leave and Domestic and Sexual Violence Leave are "use it or lose it" entitlements.  These entitlements reset every year; they do not accumulate, cannot be banked and have no cash value during the employment relationship or upon termination.

Please click here to visit Fasken’s dedicated Bill 148 resource webpage.

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