Pilot project alters emergency leave

New rules come after employer feedback to Ontario government’s workplace review
By Sarah Dobson
|Canadian HR Reporter|Last Updated: 02/21/2017

Back in 2001, Ontario introduced a Personal Emergency Leave as part of its Employment Standards Act. The change meant employees at workplaces with 50 or more workers could take up to 10 days of unpaid leave due to personal illness, injury or medical emergency, or a death, illness, medical emergency or urgent matter related to family members.

While meant to provide support and protection for employees, the leave proved a challenge for employers trying to balance workers’ rights with business needs, and in figuring out how the leave worked with benefits such as paid sick days offered by employers.

If an employer agreement (including a collective agreement) provided a greater right or benefit than the personal emergency leave standard, the terms of the contract applied instead.

So, recently, a change was made — which, for now, only applies to the automobile manufacturing, parts warehousing or automobile marshalling sector, though it could eventually extend to other industries.

The new version sees the 10-day leave entitlement separated into two parts, one for employees’ personal emergencies and one for bereavement.

Employees in those sectors are now entitled to up to seven days of unpaid, job-protected personal emergency leave per year for a personal illness, injury or medical emergency, or the illness, injury, medical emergency or urgent matter of a family member. So personal emergency leaves cannot be taken for the death of a family member.

However, workers are now entitled to up to three days of unpaid, job-protected personal emergency leave per year per death of a family member, with no yearly limit.

Overall, the pilot project is a positive change, according to Ian Howcroft, vice-president of the Ontario division of Canadian Manufacturers & Exporters (CME) in Toronto.

“We’ve been raising some issues and concerns about all the leaves that Ontario offers, particularly personal emergency leave. It was hard to manage; it was having a negative impact and causing many challenges in doing business, keeping production lines going in many instances. So this is a step to try and address that. It didn’t give everybody everything but it was focusing, I think, on a sector where the challenges were most significant and does alleviate some of those pressures.”

Changes follow feedback

The pilot project, which took effect on Jan. 1, was made as part of the province’s Changing Workplaces Review which is looking at amendments to Ontario’s Labour Relations Act and Employment Standards Act.

“Stakeholders recommended that instead of having this blanket category, that they separate out the individual leaves that are supposed to be encapsulated in the broader leave,” said Stefanie Di Francesco, an associate in the employment and labour relations group at law firm McMillan in Toronto.

“Bereavement leave is now related to death only, and then the personal emergency leave component is now only related to personal illness or illness of one of the listed family members.”

The change potentially provides employees with a greater benefit, she said.

“It may result in employees receiving more time off, at least with respect to bereavement leave.”

For example, if an employer provides five paid days of bereavement leave per year, it’s now more clear that if an employee needs more than those five days, he is entitled to three days per death per year — so an unlimited number, said Di Francesco.

The new change does bifurcate or recognize leave for bereavement as separate from the other ones, said Howcroft, “so it does allow more accuracy in the operation and implementation of the leaves.”

Employers already generous

A lot of employers already offered generous leaves, so that was one of the concerns, he said.

“If someone’s already giving three days of bereavement leave, you don’t want to then have to give more. I know they tried to design the legislation to avoid that, and when they put it all in as 10, it does wash over at times, so this is a step that will hopefully deal with addressing some of the more significant concerns around the leave.”

Many employers in the automotive and manufacturing sectors already provide generous paid sick leave, bereavement leave and other leave policies, and they had said “there’s confusion right now the way the legislation is drafted as to whether their policies provide a greater right or benefit to their employees, and to whether the employees are entitled to unpaid days in addition to paid days they get from their employer,” said Di Francesco.

And because of the way the leave was structured, it was very hard for employers — even those that had extremely generous leave provisions in the collective agreement or in their own policies — to successfully argue they gave a greater benefit, which is an option under the Employment Standards Act, according to Paul Broad, an employment and labour lawyer at law firm Hicks Morley in London, Ont.

And most of those arguments didn’t succeed, in part because emergency leave covered so much, he said.

“Previously, if there had been a death in the family, you would have had up to 10 days, depending on whether you used any of the other days for other reasons,” said Broad.

“So I think what this will do, and we’ll have to see because it just came into force, is it will at least narrow down what emergency leave covers in terms of more personal days and creates that separate ‘OK, now we know if there’s a death, there’s a specific bereavement leave provision,’ which is how you see a lot of collective agreements and employee agreements are structured that way,” he said.

“You wouldn’t usually have bereavement leave mixed in with personal days, so it is more consistent with what you would see out there.”

Dealing with potential abuse

Employers also felt the leave was being abused in that trends showed it was often used on Mondays and Fridays or on days abiding holidays, said Di Francesco.

“And because the act does say that an employer can request reasonable confirmation from the employee that they’re entitled to leave, which is usually a doctor’s note, employers found it was difficult to actually follow up on that because of the circumstances that the leave could be used for. So, generally, with leave for the illness of a child or something of that nature, you might not necessarily go to a doctor for or have a doctor’s note.”

And for employers in the automobile sector, it was important they be able to meet manufacturing demands while managing absenteeism. Absenteeism and unplanned absenteeism can be costly, said Broad.

“It’s disruptive to business and it costs money — you have to replace people, often at overtime rates, etcetera — so that’s been one issue, is employers trying to grant the leaves as you’re required to do by law but, at the same time, control absenteeism as much as you can,” he said.

“It’s trying to get that balance of letting employees deal with things they have to deal with but, at the same time, recognizing, from a business standpoint, that there is a cost to that, to the business as well, and trying to balance those interests.”

There’s no argument people may have to be away for personal reason, for personal emergencies or illnesses, said Broad.

“However, when you a have the leave the way it was in the Employment Standards Act or other acts, it becomes an entitlement and it’s hard to plan around. So some companies were seeing that hundreds and hundreds of days were being lost, and if you do the tracking on this, it’s close to weekends and other times, coincidentally perhaps, but it added to doing costs in business,” he said.

“And if you’re part of a large global enterprise, we’re all trying to be as competitive as possible to attract more investment, to retain investment here and grow manufacturing, and that became a negative impact, a deterrent to that investment because it added significant costs to operations here.”

It can be awkward and create challenges for employers, said Howcroft, with questions around who pays for the medical certificate, who pays for the evidence?

“And when you have large production lines, employing hundreds of thousands of employees, you just can’t jeopardize the line not being able to operate, so you often have to overstaff lines and have people around just in case because you don’t know how many people will show or not show.”

However, the changes don’t separate out whether the illness leave days are sick days or whether they can be used for family members, said Di Francesco, “so there’s probably going to be some confusion for employers and employees as to whether paid sick leave entitlement that an employer provides are a greater benefit or not than these unpaid ESA days.”

But the pilot project might be a first step, she said, and there may be further consultation and consideration as to whether additional changes should apply to this industry and others.

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