Statutory unpaid leave entitlement
Question: If an Ontario employer offers unpaid sick days and an employee uses all of them, is the employee entitled to statutory personal emergency leave in addition to those days?
Answer: The short answer to this question is no, as personal emergency leave was scrapped by Bill 47. By way of background, Bill 148, which came into force at the beginning of 2018, provided ten days of Personal Emergency Leave each year to all employees, the first two of which had to be paid. However, the current government recently passed Bill 47, which replaced that entitlement with eight days, of various types, that are unpaid.
When dealing with an employee’s request for sick leave, employers should be mindful of their duty to accommodate. In Ontario, employers are required to accommodate individuals to the point of undue hardship where the need for accommodation relates to a ground protected by human rights legislation. This includes disability, marital status and family status (including childcare and eldercare obligations).
Employers should never dismiss an employees’ request for accommodation out of hand. Instead, an employer is required to assess whether there is a legitimate need for accommodation. In order to do this, the employee is required to provide sufficient information. If it is determined that the employee should be accommodated, the employer must make a legitimate effort to assess whether accommodation is possible, bearing in mind that some hardship is expected when accommodation is required. If, however, the employer can show that accommodation would result in “undue hardship,” then it is not required to accommodate.
Employers should also remember that dismissal for innocent (or non-culpable) absenteeism is possible but difficult, and should certainly not be a first resort. Absences beyond what is provided for in a policy are not automatic grounds for dismissal, and employers that dismiss the employee in such circumstances do so at their own risk. At the very least, the employer should speak with the employee, assess any need for accommodation, warn the employee of concerns regarding attendance if such concerns are warranted, and allow the employee an opportunity to improve.
Stuart Rudner is the founder of Rudner Law, an employment law firm in Markham, Ont. He is the author of You’re Fired: Just Cause for Dismissal in Canada published by Thomson Reuters Canada. He can be reached at [email protected] or (416) 864-8500. This column was written with the assistance of Anique Dublin, a law clerk with Rudner Law.
