Due to excellent participation in our recent Bill 148 Q & A Quarterly Webinar, and popular demand for more information about Personal Emergency Leave ("PEL"), we have answered the most pressing questions from participants in this update.
Notably, because the changes to PEL are so new, there is very little case law regarding their application. As always, the summary below is not legal advice. Employers should seek legal advice if they are unsure about how the legislation applies to their circumstances.
Can employees take PEL during their probationary periods?
Employees are entitled to 10 PEL days per calendar year, full stop, from the moment their employment with an employer begins. There is no mechanism in the ESA for pro-rating that entitlement. Neither does it matter for how many employers an employee works during the course of a single calendar year – they get a fresh 10 with each new hire.
Generally, an employee's first two PEL days must be paid, and the remaining eight are unpaid. However, employees are not entitled to paid PEL until they have completed one week of employment with an employer. Employees can still take unpaid PEL days during the first week of employment. Once they reach one week of employment (which includes inactive employment if they spend their first week on unpaid PEL), the next two PEL days they take must be paid.
For instance, if an employee begins a new job on Monday and takes the Friday off to attend to a family member's medical emergency, that day will be unpaid. The employee will have nine PEL days remaining, and will have completed one week of employment. He is now entitled to have the next two PEL days he utilizes be paid, and the remaining seven be unpaid.
In a recent case, Bristol Machine Works Ltd, 2018 CarswellOnt 553, Arbitrator Mitchnick found that the sickness and accident insurance benefits provided for under a collective agreement constituted a "greater right or benefit" than the PEL provisions of the ESA. As such, he found that employees in the bargaining unit were not entitled to additional paid PEL days under the ESA.
Arbitrator Mitchnick noted that probationary employees were ineligible for the benefits in question, had no job security, and thus no guarantee that they would ever become eligible for benefits under the agreement. As such, he found that new employees were entitled to PEL days pursuant to the ESA for the first 60 days of their employment, and entitled to the collective agreement benefits thereafter. He noted that this resulted in probationary employees being entitled to a benefit that longer-service employees were not, but that the ESA required this result in the circumstances.
We recently had an employee ask for PEL to take his wife to a scheduled doctor's appointment. Does this count as a "personal emergency"? What kind of proof can we ask for?
Employees are entitled to PEL for:
- A personal illness, injury or medical emergency
- The death, illness, injury or medical emergency of a listed relation, or an urgent matter that concerns a listed relation.
Generally, a scheduled doctor's appointment would not be covered by PEL because it is not a "medical emergency". However, if the scheduled medical appointment is due to the employee's own illness, or the illness of a listed relation, then it would likely be covered by PEL.
For instance, someone may have scheduled, non-emergency medical appointments related to long-term or chronic illnesses. This would likely qualify for PEL. But an annual checkup ordinarily would not be included.
Employers are entitled to ask for "evidence reasonable in the circumstances" that the employee is entitled to the leave of absence. Somewhat paradoxically, they are prohibited by the legislation requiring a medical certificate from a "qualified health practitioner", which is defined as a physician, a registered nurse or a psychologist qualified to practice in Ontario or in another jurisdiction where the person is being treated.
When the basis for an employee's absence is medical, employers should seek alternative evidence, such as a parking receipt from the medical complex where the employee took his wife for her appointment, or a copy of an email or text message reminder that his wife received from the office reminding her of her appointment, or a note from the doctor's receptionist confirming the appointment.
Employers have understandably expressed significant concern about the prohibition against requiring a doctor's note. Although we agree that there are circumstances under which this prohibition will prove problematic, employers should exercise common sense. Consider whether a medical certificate is desirable based on the duration of the leave, how frequently the employee takes leave, and whether the leave requests are at suspicious times such as Fridays before long weekends. If the employee is generally trustworthy, it may be more expedient to take the employee at his or her word.
We take the position that employers may still request a doctor's note where desirable, they simply cannot require that an employee provide a note for the ten days of PEL prescribed in the ESA, and cannot impose or threaten to impose adverse consequences on an employee for failing to provide one.
There is one notable exception. If an employee's absence were due to workplace injury or related illness, the obligations of employees and employers to comply with the Workplace Safety and Insurance Act, such as to complete and file timely Form 6 and Form 7, and for physicians to complete a Form 8, are still in force. Employers simply cannot require those when adjudicating the claim for PEL. A truly perplexing dichotomy.
The prohibition against requiring a medical certificate for PEL only applies to the ten days prescribed in the ESA. Once an employee has used his or her ten PEL days, employers are free to require a medical certificate for a requested 11th day of absence. Further, nothing in the ESA prevents employers from requiring information from an employee who is requesting human rights accommodation. The accommodation process is a collaborative one, and employees requesting accommodation have an obligation to provide sufficient information to the employer.
The Ontario government has taken the position that where PEL is taken in relation to the illness or injury of a listed family member, employers may only require an employee to disclose the name of the relative, and their relationship to the employee, and a statement that the absence was required because of the relative's injury, illness or medical emergency. The government's online guide indicates that it is never permissible for an employer to require details of a relative's medical condition. This guide does not have the force of law.
If an employee already has paid sick leave, do they get an additional two paid days of PEL?
It depends on the terms and conditions of the "sick leave". Under the ESA, if an employer provides a greater right or benefit than PEL, they are not obligated to provide PEL. However, determining whether you are in fact providing a greater right or benefit will depend on the terms and conditions of the sick leave.
The right in question, in this case - the sick leave, must "directly relate to the same subject matter" as PEL under the ESA. Courts and arbitrators have held that the comparison must be "apples to apples" in order to constitute a greater right or benefit.
The case law generally indicates that the following criteria will be relevant:
- Whether the "sick leave" can be taken for all of the same purposes as PEL under the ESA. For instance, if the leave only relates to an employee's own illness or to bereavement, then it may not be a greater right or benefit
- Number of days of leave
- Whether the leave is paid or unpaid
- Whether employees are at risk of any negative consequences because they take sick leave. For instance, if taking sick leave makes an employee ineligible for a bonus for attendance or counts toward an attendance threshold that may trigger discipline, it may not be a greater right or benefit
- Other criteria – such as what sort of evidence the employer requires to support the leave, and whether the employer can deduct a part day of leave from the employee's entitlement as if it were a whole day (employers can do so under the ESA – as such, the sick leave may be a greater right or benefit if part days are not counted as whole days).
No single criterion is determinative, but some are clearly more relevant than others. This has become a pressing issue for employers since the institution of paid PEL leave, as some are concerned that they may have to provide paid PEL in addition to benefits employees were already receiving under contract.
In Carillion Services Inc, the collective agreement provided for three paid "floater days" that could be taken for any "justifiable absence". Two employees requested paid PEL days for personal illness in January 2018, but the employer took the position that the employees were not entitled to same because the agreement provided for a greater right or benefit. The paid floater days refreshed every July. One of the employees did not have any floater days left, and the other had one left but did not wish to use it. The employees grieved, alleging that they were entitled to paid PEL days on top of their floater days.
Arbitrator Rogers upheld the grievance. The entitlement to floater days was found under the "Paid Holiday" section of the collective agreement, and employees were not obligated to use the floater days for the purposes set out in the ESA. The arbitrator found that the purpose of the floater days was to give employees "a day of rest from work without monetary loss", and that the employer could not force employees to use the days "to respond to a circumstance in which the ESA would provide for personal emergency leave under section 50".
Because of the language of the collective agreement at issue, Arbitrator Rogers found that the employer could only treat employees' PEL entitlement as being reduced if they used a floater day for a PEL purpose, such as bereavement leave. If they elected not to do so, then employees would receive two paid PEL days in addition to their three paid floaters days.
While this result will be disturbing for many employers, each agreement and policy must be evaluated on its own merits, based on the language utilized therein. It is advisable to consult with an employment lawyer if you are uncertain how the language of your policies or contracts interacts with entitlements under the ESA.
If an employee was scheduled to work overtime on a day they take PEL, do they still get paid for that overtime?
Under the new provisions, for the first two days of PEL an employee must be paid "the wages the employee would have earned had they not taken the leave". However, there are exceptions to this rule.
If the employee receives performance-related wages, like commissions or a piece work rate, employers must pay the employee's hourly rate, or the minimum wage that would have applied to the employee for the number of hours the employee would have worked had they not taken the leave, whichever is greater. For instance, if an employee is paid solely by commission, they would be entitled to the applicable minimum wage for the PEL time.
If an employee takes paid PEL when overtime pay, a shift premium or both would be payable, the employer must only pay the employee's regular rate for the hours they were scheduled to work, even if some of those hours would have been overtime.
"Regular rate" does not include overtime or shift premiums. For salaried employees, "regular rate" is the amount earned in a work week divided by the number of non-overtime hours worked in that week. For hourly employees, it is the regular hourly rate.
What if an employee takes paid PEL on a public holiday?
Employees can agree to work on a public holiday and, in some workplaces including hospitals, continuous operations, hotels, motels, tourist resorts, restaurants or taverns, employees can be required to work on a public holiday.
Generally, employees who work on public holidays are entitled to either:
- regular wages for the hours worked on the public holiday, plus a substitute day off with public holiday pay
- "premium pay" which is 1.5 times their regular rate for all hours worked on the public holiday, plus public holiday pay, and no substitute day off.
Employers must decide in advance of the public holiday which option they will provide. Employees must work all of their last regularly scheduled workday before the public holiday and all of their first regularly scheduled day of work after the public holiday, or have reasonable cause for failing to do so, in order to become entitled.
If an employee is required to or agrees to work on a public holiday, and the employer has arranged to provide public holiday and premium pay with no substitute day off, employees who take paid PEL instead are not entitled to premium pay for the leave. They are only entitled to public holiday pay.
However, if the employer has arranged to provide regular wages for the public holiday, plus a substitute day off with public holiday pay, employees who take PEL on the public holiday will still be entitled to regular wages for the holiday, as well as the substitute day off with public holiday pay.
For employees outside of hospitals, continuous operations, hotels, motels, tourist resorts, restaurants or taverns who have the option of agreeing to work a public holiday but who cannot be required to work a public holiday, the ESA presumes that employers will provide regular wages for the public holiday, plus a substitute day off with public holiday pay. The employee can agree (in writing) to accept premium pay plus public holiday pay, and no substitute day off, but the employer cannot force the employee to forego a substitute day off.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.