Amongst the many changes to the Employment Standards Act introduced by Bill 148 is the expansion of Personal Emergency Leave. Previously only available to employees in workplaces with 50 or more employees, this 10 day leave is now available to everyone. The first two days of leave are paid. Effectively this amounts to two days of paid sick, caregiver or bereavement leave per year for all employees.
Entitlement to Personal Emergency Leave
Personal emergency leave can be taken for the following reasons:
- A personal illness, injury or medical emergency.
- The death, illness, injury or medical emergency of an individual described in subsection (2).
- An urgent matter that concerns an individual described in subsection (2).
Subsection (2) details a list of individuals from the employee’s spouse to the step-grandparent of the employee’s spouse – basically the leave can be taken with respect to any of the employee’s or the employee’s spouse’s relatives.
Evidence of Entitlement
A tricky amendment, and the one that we anticipate will create a lot of headaches for employers, is with respect to evidence. Subsection (13) sets out that employers “shall not require an employee to provide a certificate from a qualified health practitioner as evidence” of their entitlement to the leave. “Qualified health practitioner” is defined in this section as a doctor, nurse or psychologist. What is permitted under subsection (12) is the mysterious “evidence reasonable in the circumstances.”
We can appreciate that not every illness requires a trip to the doctor (or nurse or psychologist), and that the hassle of getting a doctor’s note can create its own set of problems, however what type of evidence will employers be able to require from employees using these days?
What is “evidence reasonable in the circumstances”?
While the amendments to the Personal Emergency Leave are too new to have been considered by the courts at this point, the phrase “evidence reasonable in the circumstances” was in the previous version of the legislation and has been considered by decision makers.
The most comprehensive discussion of this ambiguous phrase comes from Arbitrator Chauvin in Access Alliance Multicultural Community v Health, Office, Professional Employees and Education Division of UFCW, Local 175. In that case he provided the following guiding comments about what is “reasonable in the circumstances”:
- Determining what is reasonable requires a balancing of the rights and interests of the employer and the employee
- The employee has a statutory right to the leave
- The employer has the right to operate its business productively
- Ideally, the employee will provide the best evidence reasonably available to support their entitlement to the leave
- Evidence requested by the employer should be proportionate to the length of the leave – for example, in the case of a leave of only one day the employee’s statement may be sufficient and it may be unreasonable to require that the employee provide further evidence
- Where grounds exist to question the legitimacy of the leave, it may be reasonable to require more evidence
An example given in the case is that of an employee missing a day of work because of a migraine. This situation was considered in Tilbury Assembly Ltd. v. United Automobile, Aerospace and Agricultural Implement Workers of America, Local 251 (International Union) (Butler Grievance), [2004] O.L.A.A. No. 111, 124 L.A.C. (4th) 375 where the arbitrator ruled that it was not reasonable to require a doctor’s note, because it was not necessary for the employee to see a doctor because of a migraine. A note from the pharmacist and a receipt for migraine medication was sufficient “evidence reasonable in the circumstances.”
What’s an Employer to Do?
While an employer cannot require a doctor’s note this does not mean an employer cannot ask for one, there will just be no recourse where the employee refuses to provide it. Employers need to act as reasonably as possible and tailor their requests for evidence to the circumstances. If a leave is taken to care for a sick child, it may be reasonable to request evidence of the child’s absence from school. If a leave is taken because of the death of a family member, it may be reasonable to request to see the obituary. If an employee takes one day off because they have a sore throat it may be reasonable to just take them at their word. If, however, they have a pattern of having a sore throat every Monday and Friday it may be reasonable to require more evidence.
Employer’s should bear in mind that the leave entitlement is for 10 days (the first two are paid). Therefore, it is permissible to require an employee to provide a doctor’s note on the 11th day.
If you need help understanding the amendments to Ontario’s workplace laws or implementing an attendance management program we would be happy to assist. Contact us at SpringLaw for more information and to discuss the specifics of your situation.