Ontario Bill 148: New Rules for Personal Emergency Leave

Among a variety of changes to Ontario’s employment landscape, Bill 148 - or the Fair Workplaces, Better Jobs Act - brings specific new rules for the implementation of personal emergency leave (PEL) and sick days. The changes represent a dramatic amendment to original rules set out in the Employment Standards Act (2000) -since they take in both paid and unpaid leave, and apply to almost all employers, in all industries.

In effect since 1 January, 2018, employers in Ontario should take steps to ensure their business is now compliant with the new regulations… So, what do you need to know?

What Are The PEL Changes?

Entitlement to PEL: Prior to the introduction of Bill 148, PEL entitlements only applied to working for employers with a staff of 50 or more. However, under Bill 148 the 50-employee threshold has been eliminated - now, all employees are entitled to up to 10 days of PEL per year - the first 2 days of which are paid leave (if the employee has been employed for one week or more).

PEL payment: The new PEL regulations - 2 days paid leave for all employees - must be integrated into all Ontario employers’ payroll systems. In circumstances where only part of a day has been taken as PEL, absent employees are entitled to both the wages they would have earned at work, and their PEL pay - so long as their 2-day allowance has not already expired. Employers can count a partial-day absence as a full day of PEL leave.

Reasons for PEL: The justifiable reasons for taking PEL have also been expanded under Bill 148. Those reasons include:

• Personal illness or personal medical emergency
• Death, illness or medical emergency affecting a family member (or person considered a family member)
• An otherwise urgent matter concerning a family member (or person considered a family member)

Evidence for PEL: In another amendment to existing rules, Bill 148 prevents employers asking for a doctor’s note from employees taking PEL - up to the first 10 days of that leave.

This rule only prevents the request of evidence from ‘qualified health practitioners’ (ie doctors, psychologists, nurses, etc) - employers are allowed to ask for alternative forms of evidence which are “reasonable in the circumstance”. Asking for ‘reasonable evidence’ may be justified by situations of extended absence, or if an employee has established a pattern of absences. Forms of ‘reasonable’ evidence may constitute a letter from the doctor’s receptionist, or a copy of an obituary.

Notice of PEL: Employees are generally expected to inform their employers of their intention to take PEL, but given the circumstances in which this type of leave often needs to be taken (ie unexpectedly, and at short notice) it is understood that advance notice may not be possible.

When PEL notice cannot be provided ahead of time, employees are expected to inform their employers as soon as possible. This can be done in writing, in person, or over the phone. Failure to provide notice does not affect an employee’s right to take PEL - nor can an employer insist upon advance notice, or penalize employees for not informing them ahead of time.

Exemptions to PEL: Some categories of employee are not included in, or covered to the same extent by, the PEL changes introduced by Bill 148 - those categories are as follows:

• PEL may not be taken if doing so would constitute dereliction of duty or professional misconduct by the employee - for example, employees in some military, judicial, or emergency services roles.
• Certain employees in the construction industry receive PEL pay as 0.8% of their regular wages - and as such are not entitled to take the paid portion of their PEL. These employees are still entitled to unpaid PEL.
• Unionised employees working in the automotive sector do not have an entitlement to paid PEL. They are however entitled to 7 days of unpaid sick leave, and 3 unpaid days of bereavement leave.

PEL rights: Taking PEL does not alter an employee’s legal status in the workplace. Employees on PEL continue to receive the same rights and protections as colleagues who take other types of leave, such as maternity or sick leave - that is, they may not be fired by their employer, threatened, or penalised for taking the leave.

To learn more about Canada’s employment legislation, and the implementation of different types of leave, check out activpayroll’s dedicated Global Insight Guide to Canada...