Employment & Labour

New personal emergency leave rules create headaches for employers

By AdvocateDaily.com Staff

Employers are entitled to be confused about Ontario’s new personal emergency leave (PEL) rules, Toronto employment lawyer and mediator Stuart Rudner tells AdvocateDaily.com.

The changes came into force earlier this year as part of Bill 148, the Fair Workplaces, Better Jobs Act, 2017, which Rudner, founder of Rudner Law, calls “the most significant revamp” of the province’s employment laws in the last three decades.

By 2019, the law will raise the province’s minimum wage to $15 per hour, force employers to pay the same to part-time, temporary, casual and seasonal workers as they would to full-time employees doing the same job, and adds measures to ensure employees are not misclassified as independent contractors.

However, Rudner says it’s the expansion of PEL that has caused some of the biggest headaches for employers.

Under the old version of the Employment Standards Act, 2000 (ESA), only employers with more than 50 employees had to offer the leave, with a maximum of 10 unpaid days available for personal emergencies, such as illness or injury to the worker or a family member, every calendar year.

But Bill 148 extends PELs to any employer, even those with one worker on their books, and provides for the first two days to be paid, so long as the person has been employed for more than one week in total.

“It’s a fairly broad range of family members that it can apply to, including illness or injury to a child, spouse or parent,” Rudner explains. “But it has to be related to an emergency or illness. It can’t be for a routine dentist appointment.”

And while the law allows employers to require that employees provide evidence “reasonable in the circumstances,” it specifically bars them from forcing workers to produce doctor’s notes to prove eligibility.

“If the absence extends beyond 10 days, then you can ask for a doctor’s note, but not before that. I think we need some guidance as to what ‘reasonable evidence’ is if not a note from a medical professional,” Rudner says.

While most employees will treat PEL entitlement respectfully, he says there are bound to be cases of abuse, and the law leaves employers short on options to tackle it.

“Some employees will, unfortunately, take the Friday before a long weekend off, or go to Vegas and claim an emergency,” Rudner says. “If you suspect abuse, employers need to have some sort of control over it. That’s where we need guidance.”

He says employers who offer sick leave to employees should be aware the ESA allows employers to essentially replace entitlements under the Act if they already provide an equal or greater benefit to their employees, noting that an argument could be made that certain sick leave policies can subsume PEL requirements.

Rudner says the PEL requirement has a number of other kinks employers and employees should be aware of, including that there is no such thing as a partial PEL day under the ESA.

“If you have to leave for one hour, that counts as one of your 10 days,” he explains.

In addition, PEL days cannot accrue to subsequent years and the entitlement is not prorated for employees who start work later in the year. Rudner says the new rules have raised so many technical issues that PEL dominated a recent session he took part in for human resources professionals on the impact of Bill 148.

“If we hadn’t cut the question period off, we could have spent our full hour on this issue,” he says.

“Employers need to review their policies now, make sure they’re compliant, and assess if they’re already providing a benefit that is equal or better than what is required by the ESA,” Rudner adds.

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