14 May Personal Emergency Leave

Emergency Leave or Additional Vacation Days?

In early May, as the weather begins to warm, the thoughts of many Ontario employees begin to turn to cottages, barbeques, pools and how to get more time off to enjoy these things.

This summer, the answer for many people, will likely be Personal Emergency Leave days.

Personal Emergency Leave days have been in place for many years – what is new to employment law in Ontario and to the Employment Standards Act (as of January 1, 2018) is the addition of two paid personal emergency leave days per year.

Minimum employee rights

It is worth noting that this addition to the Employment Standards Act provides a set of minimum entitlements. There are a few exemptions based on professions but it’s safe to say it applies to most employees in Ontario.

This means that employers can provide more than these amount, they just can’t provide less than these minimums. Many employers do provide greater entitlements than the Personal Emergency Leave days as set out in the Employment Standards Act. Most collective agreements also provide greater entitlements.

Some construction employees might simply have an amount added to their paycheques meaning that although they would still be entitled to 10 days of Personal Emergency Leave per year, it would be unpaid.

However, sometimes it can be hard to determine whether an employee has been provided with more than their minimum entitlements as relates to Personal Emergency Leave dates.

In some examples, employers have updated their employment agreement and these days are in fact called Personal Emergency Leave days and used as set out in the Employment Standards Act. This provides substantial clarity and is a great way to address this issue.

However, I have seen leave days described as everything from Sick Days to Wellness Days.

This is where whether or not an employer has provided more than the required minimum can be unclear and some examination of the specific situation will be necessary to determine if the Personal Emergency Leave days are included in what has already been provided or can be used in addition to what has already been provided.

What is a personal emergency leave day

The Employment Standards Act provides a fairly broad range and ambiguous definition of what entitles an employee to a Personal Emergency Leave day:

• The employee experiences a personal illness, injury or medical emergency; or
• There is an urgent matter, a personal illness, injury, medical emergency involving any of the following people connected to the employee:
  1. The employee’s spouse.
  2. A parent, step-parent or foster parent of the employee or the employee’s spouse.
  3. A child, step-child or foster child of the employee or the employee’s spouse.
  4. A grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee’s spouse.
  5. The spouse of a child of the employee.
  6. The employee’s brother or sister.
  7. A relative of the employee who is dependent on the employee for care or assistance.

While the list of people connected is to the employee for this purpose is fairly straight forward, there is considerable ambiguity about what does, or does not constitute an urgent matter, a personal illness, an injury or a medical emergency.

The Ministry of Labour does provide some examples of urgent matters justifying a Personal Emergency Leave day:

• The employee’s babysitter calls in sick.
• The house of the employee’s elderly parent is broken into, and the parent is very upset and needs the employee’s help to deal with the situation.
• The employee has an appointment to meet with their child’s counsellor to discuss behavioural problems at school. The appointment could not be scheduled outside the employee’s working hours.

In an attempt to discourage using Personal Emergency Leave days as additional vacation days, the Ministry of Labour has provided that the following do not constitute an urgent matter justifying a Personal Emergency Leave day:

• An employee wants to leave work early to watch his daughter’s soccer game.
• An employee wants the day off to attend her sister’s wedding as a bridesmaid.

It remains somewhat unclear what justifies a Personal Emergency Leave day.

Proof required by employer

In addition, what employers can ask for as proof to justify a Personal Emergency Leave day also remains unclear.

Employers can require evidence that is “reasonable in the circumstances”. This would likely include a death certificate if a death is the basis for the leave. Although an employer could certainly ask an employee for note from a babysitter who called in sick, isn’t clear whether or not an employer could require that note if the employee refused to ask the babysitter for one.

What is clear is that employers cannot require a medical note to verify a Personal Emergency Leave day.

It is also worth noting that there may not be any evidence at all of a personal illness where the employee simply remained at home for a day due to a personal illness.

Putting this all together, there is very little an employer can do to verify the legitimacy of a personal emergency leave day, in order to make sure these are not simply used as two additional paid vacation days per year.

Some unanswered examples

While the Ministry of Labour has addressed some examples on their website, there are many examples that remain unanswered:

• A manager wakes up Friday morning prior to the long weekend to so many emails from employees using Personal Emergency Leave days that they become too upset to come in to work and also use a Personal Emergency Leave day, which they spend golfing.
• After an incredibly hard workout Thursday evening (getting ready to hit the beach on the weekend) the employee wakes up Friday morning too sore to come into work and uses a personal emergency leave day to recover by the pool in the back yard.
• A babysitter calls in sick on Friday morning creating an urgent matter for that employee. The spouse, parents, children, grandparents, grandchildren, brothers and sisters of the employee all use Personal Emergency Leave days based on an urgent matter relating to a listed family member and all beat the traffic to the family cottage.

The following example further illustrates the problems with the current provisions:

An employee knows that there is very little that an employer can do to verify a personal illness for the purpose of a Personal Emergency Leave day. With this in mind, the employee decides weeks before the May long weekend that they would like to take Friday off with pay without using a vacation day. The employee goes to their cottage Thursday evening and emails their manager Friday morning notifying them that they will be using their first personal emergency leave day of the year based on a personal illness. Although this is clearly contrary to the provisions of the employment standards act and there would be serious disciplinary consequences to the employee if their employer discovered the truth, the employee is confident that the employer’s almost nonexistent ability to verify these leave days means that they are safe in doing so.

The purpose of this blog entry is to highlight the uncertainty surrounding the use of and verification of Personal Emergency Leave days.

Although this will likely improve over time as more cases provide guidance on this topic, with the first long weekend of the summer upon us, the Province of Ontario should likely brace for an outbreak of Personal Illnesses on Friday that will only be rivalled by the number of employees facing Urgent Matters involving unplanned events, out of the employee’s control, which can cause serious negative consequences if not responded to.

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