FAQ: New Legislative Changes to Personal Emergency Leave (including Sick Days)  

FAQ: New Legislative Changes to Personal Emergency Leave (including Sick Days)

 

Since the Government of Ontario introduced proposed changes to the province’s labor laws — many of which have come into effect per Bill 148 — much of the discussion (and debate) has focused on the increase in minimum wage, which is now $14/hour and will climb to $15/hour on January 1, 2019.

 

However, there is another significant adjustment that is arguably not getting as much coverage and attention, but for many organizations will have a significant impact on staffing and costs: changes to personal emergency leave rules and sick day entitlements.

 

To help organizations get ahead of these major changes vs. get blindsided by them in the weeks and months ahead — which is not just costly and time consuming, but can damage employee relations and trigger turnover and recruitment challenges — we have prepared the following FAQ:

 

  1. What has changed as of January 1, 2018?

 

Employees are now entitled to 10 personal emergency leave days per calendar year, of which the first two are paid. The leave does not have to be consecutive.

 

  1. Does unused personal emergency leave accrue?

 

No. Employees cannot bank personal emergency leave days in the current year for potential use later.

 

  1. Does the 10 days of personal emergency leave apply to all employees, or just those that have passed a 3-month probationary period?

 

The legislation applies to all employees who have been employed for one week or longer.

 

  1. Do the changes apply to all employees?

 

The changes apply to most employees. However, there are three categories of workers that are subject to special rules under the new legislation:

 

  • Certain professionals cannot take personal emergency leave in situations where doing so would constitute a dereliction of duty or professional misconduct. Further information is available here.
  • Construction workers who receive at least 0.8% of their regular pay (wages or hourly rate) as personal leave pay on each cheque are not entitled to paid personal emergency leave. However, they remain entitled to unpaid personal emergency leave.
  • Unionized automotive sector workers are not entitled to paid personal emergency leave. They continue to be entitled to seven unpaid sick days (personal or family), and three unpaid bereavement days per calendar year.

 

  1. What constitutes “personal emergency leave” under the legislation?

 

Personal emergency leave falls into two categories:

 

  • Personal illness, injury or medical emergency.
  • Death, illness, injury, medical emergency or urgent matter relating to certain family members.

 

For a detailed definition of each category click here.

 

  1. Can employers still ask employees to submit a doctor’s note to justify personal emergency leave?

 

There is confusion around this issue, because some media reports have suggested that doctor’s notes are effectively banned. This is not true. Here are the facts:

 

  • Employers cannot ask employees for a doctor’s note to justify personal emergency leave for a personal or family-related illness, up to the first 10 days of such leave each calendar year.
  • Under the legislation, a doctor’s note refers to a note written by a physician, registered nurse, or psychologist. Employers can still ask for notes from other kinds of health practitioners, such as a dentist, naturopath, physiotherapist, RMT, and so on, provided that the request is reasonable in the circumstances.

 

  1. Can employers ask for any documentation to justify personal emergency leave?

 

Yes. Employers can ask employees who wish to take (or have started taking) personal emergency leave to provide evidence that is reasonable to the specific circumstances. For example, an employer may ask an employee taking personal emergency leave due to the death of a family member, to submit a copy of a death certificate.

 

  1. What are the employee’s obligations to provide notice of taking personal emergency leave?

 

The nature of emergency employee leave is that it is unplanned (and unwelcome), and as such expecting employees to provide advance notice in all cases is unrealistic.

 

With this being said, employees are expected to inform their employer of their intention to take personal emergency leave. If this cannot be done before the leave starts, then employees should notify their employer ASAP. This does not have to be in writing, as oral notice is sufficient.

 

It is critical for employers to keep in mind that they cannot insist that employees request personal emergency leave in advance, nor can they penalize them in any way for failing to do so.

 

  1. What rights do employees who take personal emergency leave have?

Employees who take personal emergency leave are entitled to the same rights as employees who take maternity or parental leave. Specifically, such employees cannot be fired, penalized or threatened in any way for taking, or planning to take, personal emergency leave.

  1. Can employees take partial personal emergency leave — e.g. 2-hours or half a day?

 

Yes. In these cases, the employee would be entitled to the salary they earned while working, and personal emergency leave pay, provided that it was available (i.e. they had not used their two paid days in the calendar year).

 

Learn More

 

To learn more about ensuring that your HR team is on top of all legislative changes — including but not limited to those related to the new personal emergency leave provisions — contact the PIVOTAL team today.