Bill 47, the Ford government’s Making Ontario Open for Business Act has passed. One big change the bill makes is to the much discussed (and much used) Bill 148 amendment regarding Personal Emergency Leave. This amendment will come into force on January 1, 2019.
For historical purposes, you can read all about the Bill 148 version of Personal Emergency Leave on our blog here.
Under the Bill 47 version of the Employment Standards Act, we will soon have Sick Leave, Family Responsibility Leave and Bereavement Leave instead of Personal Emergency Leave.
Sick Leave will consist of an unpaid leave of three days per year for personal illness, injury or medical emergency. Employers can require that the employee provide “evidence reasonable in the circumstances that the employee is entitled to the leave.”
Family Responsibility Leave
Family Responsibility Leave will consist of an unpaid leave of three days per year because of illness, injury or medical emergency or an urgent matter that concerns:
- the employee’s spouse
- parent, step-parent or foster parent of the employee or the employee’s spouse
- child, step-child or foster child of the employee or the employee’s spouse
- 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
- a relative of the employee who is dependent on the employee for care or assistance
Again the employer can require evidence reasonable in the circumstances that the employee is entitled to the leave.
This leave is two unpaid days per year in the event of the death of an individual in the bulleted list above. Again the employer can require evidence reasonable in the circumstances that the employee is entitled to the leave.
Personal Emergency Leave entitled a worker to ten days per year, two of which were paid. The leave covered the same three situations as the three new leaves but the days were not allocated to specific reasons. Under Personal Emergency Leave an employee could have taken the full ten days for a sick child, for example. These three new leaves entitle an employee to a possible total of eight days but only if each reason should arise. None of the days under the new leaves are paid.
Under Personal Emergency Leave, employers were not permitted to require medical notes from employees to substantiate their leave entitlement. This protection has been removed and employers can now require whatever evidence is “reasonable in the circumstances.”
An employee is entitled to the new leaves after two weeks of work. Employees were entitled to Personal Emergency Leave immediately and the two paid days after one week of work.
In reality, just because an employee needs more than three days of sick time (or time to care for a family member) per year does not mean that they are no longer entitled to their job. Employers who terminate ill employees or employees who take time off to care for ill relatives, risk human rights complaints. The Ontario Human Rights Code provides accommodations for employees who are ill or who need time off to care for a sick relative. The employer has a duty to accommodate the employee up to the point of undue hardship. Allowing an employee an extra few sick days will rarely, if ever, amount to undue hardship.
Personal Emergency Leave was well-used and employees will be sorry to see it go. Employers will need to update their policies and ensure that employees are aware of the changes to their statutory leave entitlements.