Legislative reversal in Ontario presents challenges for employers

Bill 47 does away with personal emergency leave, ‘causes confusion’: Expert
By Marcel Vander Wier
|Canadian HR Reporter|Last Updated: 06/17/2019
Doug Ford
Upon taking office, Ontario Premier Doug Ford quickly moved to reverse legislation affecting employers in the province. Shutterstock

The elimination of two mandatory paid emergency leave (PEL) days through Bill 47 has Ontario employers facing a tough decision, according to experts.

In November 2018, the provincial Progressive Conservative government implemented legislation through the Making Ontario Open for Business Act, 2018, granting workers eight days of unpaid absence for sickness, family leave and bereavement leave.

Eleven months previous, the Liberal government had approved Bill 148, altering the Employment Standards Act (ESA) so Ontario workers were entitled to two paid PEL days off each year and a further eight unpaid PEL days, for which no medical documentation could be requested by employers.

The legislative reversal means employers must now choose to either continue offering two days of paid sick time, or revert to the new minimum standard.

George Brown College in Toronto, for example, is removing the benefit for non-union faculty, while Humber College, also in Toronto, chose to maintain paid sick days, according to a Toronto Star story in March looking at the different approaches colleges are taking.

The scenario has unveiled two very different schools of thought amongst employers, according to Ryan Wozniak, vice-president of legal at Peninsula Canada, an HR consultancy in Toronto.

One employer group simply wants to abide by legislative minimums due to budgetary concerns, while the other group offers paid sick leave as a morale booster and retention tool, he said.

“It really depends on the pulse of the particular workplace or the motivations of the particular employer,” said Wozniak. “As a general practice, it’s good to provide for some flexibility so that your employees can take care of themselves and your workplace is more productive… (but) it depends on your workplace and your operational makeup.”

Unique business needs can see specific employers such as retailers or call centres highly affected by worker absence, while other organizations may have more workforce flexibility, he said.

Removing the benefit

The eight days of unpaid leave legislated through Bill 47 include three days for illness, three days for family responsibility and two days for bereavement.

Sick days are not pro-rated, meaning employees hired partway through a calendar year are still entitled to the time away, said Wozniak.

And employers may once again ask for reasonable evidence in the form of doctor’s notes to demonstrate employees are eligible for the leave, he said.

In Bill 148, Ontario employers had no choice but to fund two PEL days. Bill 47 allows them to remove that benefit and revert to previous company policy, said Wozniak.

“The pendulum swing has caused some confusion for employers,” he said. “It’s hard enough to stay on top of your legislative obligations. And when you have a sudden shift like this, it can create additional confusion because the first shift often creates confusion.”

For organizations that were offering more than two days of paid leave, it is very likely status quo going forward, said Michelle Ventrella, HR director at Pivotal HR Solutions in Scarborough, Ont.

“Many organizations were offering more than two paid, giving five paid,” she said. “Those organizations are saying, ‘Well, we’re still going to pay for five because that’s what we’ve always done.’”

“If you’re a really big company and you’re exceeding anyways, then you’re not really impacted that much.”

But for smaller companies that were mandated to offer PEL, reverting to no paid leave could have a detrimental impact on employees who may perceive it as a loss in compensation, said Ventrella.

“A company that was paying for two… needs to think about the impact if they take away those two,” she said. “As a general best practice, once an employee’s been given a benefit of any kind, be very careful about taking that benefit away.”

The removal of paid leave does not apply to union workers, who almost always have some amount of paid sick leave negotiated into their contract, said Ed Canning, employment lawyer and partner at Ross & McBride in Hamilton, Ont.

“Until (Bill 148) came in… there had never been anything requiring employers to pay sick days to non-unionized employees in the province of Ontario,” he said.

“(Now) we’re back to the world as we knew it.”

Culture matters

Prior to making a decision, employers must examine company culture and determine what expected norms are — they may vary widely between office workers and machine shop staff, said Ventrella.

“You need to know your workforce and know what will fly. If you’re simply just changing with the law, just turning a blind eye to what employees want… you’ll still have a problem.”

“You have to know your culture,” she said. “Everything clicks together puzzle-style. You want the pieces to all fit together, such that you’re always going towards your strategic goals as an organization. Never just look at that one piece in isolation of other things.”

Corporate or salaried environments likely have some type of paid sick leave policy in place for retention purposes, but it always depends on what the employer can afford, said Ventrella.

And since Bill 148 wasn’t around long, some workers may understand if the PEL benefit is removed by their employer — though it could be a good opportunity for a simultaneous wage increase, she said.

For employers that are able to continue offering paid sick leave, flaunting those additional benefits is perfectly acceptable, said Ventrella.

“This is not the time to be a silent hero,” she said.

“If you’re doing more than you have to, make sure employees know that. You need people to feel good about where they work because that affects their attendance, their intentions to stay, their quality of work.”

Mid-size employers often have a formal policy that gives staff five to 10 paid sick days annually — a recommended period for office environments, according to Canning.

Some even choose to offer sick pay for up to three months, until long-term disability activates, he said.

“If five or 10 days are abused, you’re not going to lose a lot of sleep over it. If three months is abused, that’s an expensive enterprise.”

Small employers may not have a sick-leave policy, choosing to offer paid leave to longtime employees on a case-by-case basis, said Canning.

“As part of employee management and morale, pulling back on two sick days a year is certainly going to make the employer look cheap,” he said.

“I would tell them to take that money they might have put into sick pay and put it into increased wages for their employees, because I think it’s better for their business to do so.”

Advice for HR

Sick pay is most effective when it is not “overly generous” as it can be “onerous to administer and adjudicate, and is subject to abuse,” said Canning.

“Its about retaining employees. Having a decent sick pay plan can give comfort to employees and is part of their consideration in resisting jumping ship.”

For those employers that do remove paid sick leave from staff compensation packages, correspondence could be as simple as an all-employee memo highlighting the recent changes to provincial legislation, he said.

But such a move could result in ill employees continuing to report for duty and bringing germs into the office, even though social pressures indicate it is not appropriate to do so, said Ventrella.

For this reason, employers should never consider rewarding perfect attendance, she said.

For employers considering shifting policy because of one particular employee’s abuses, it is better to address that worker than disengage others as a result, said Ventrella.

Complying with legislation should be every employer’s default policy — but then every business has different needs, said Wozniak.

“It’s a best practice to analyze your specific business environment and your operational needs and implement a policy that adequately reflects the reality,” he said. “It takes some care and thought, and sometimes you may determine as an employer that you should offer more than the statutory minimums.”

“You may find that the minimums are either all you can afford or all that you need. Not every decision is popular, but you do your best as a business to try and make all the parts of the enterprise work.”

Employers should always have a detailed process in place to track employee absences and statutory leave entitlements, said Wozniak.

Building in allowances for unavoidable employee absences helps workers maintain work-life balance, he said.

“These things happen, and more and more people have dual-income earners and kids and it becomes very difficult to juggle your work life with your family life,” said Wozniak. “The ESA tries to strike a balance. Obviously, people are going to disagree about what that balance should look like.”

“The act recognizes that you have to build in a certain number of days or build in a contingency for illness because it happens and it’s unavoidable. Every year, people get sick. It’s just a fact of life.”

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