To Ask or Not to Ask?… or Better Yet… What to Ask?
Making Documentary Requests Related to Employee Absences Post-Bill 148
Note: On January 1, 2019, a number of changes to the Employment Standards Act, 2000 came into effect pursuant to Bill 47, the Making Ontario Open for Business Act, 2018. Bill 47 undid many of the changes that the Liberal government introduced in Bill 148, returning to previous legislative language. We outlined the various changes to both the Employment Standards Act, 2000 and the Labour Relations Act, 1995 in an October 25, 2018 PH Report. Of importance, Bill 47 repealed the prohibition on employers requiring employees to present a medical note for being absent from work due to personal illness. The changes are underlined below.
The Ontario Employment Standards Act, 2000 (“ESA”) underwent a substantial set of amendments on January 1, 2018 when Bill 148, the Fair Workplaces, Better Jobs Act, 2017 (“Bill 148”) was enacted.
Some of the more significant amendments were made to the leave of absence provisions. These changes include: increasing the duration of some leaves, adding new types of leave, updating the pre-conditions for certain leaves and limiting what documents employers may request from employees.
What follows is a summary of the documentation that an employer is permitted to request and which an employee is required to provide in order to substantiate the need for the associated leave of absence. The Ministry of Labour has published guidance in its Leaves of Absence Fact Sheet and Your Guide to the ESA. It is also important to note in each of the sections below from which medical practitioners an employer is entitled to receive documentation in support of the leave.
PERSONAL EMERGENCY LEAVE (“PEL”)
PEL days can still be taken for: personal illness, injury or medical emergency; the death, illness, injury or medical emergency of specified family members; or an urgent matter that concerns specified family members.
Prior to Bill 148, not all employers were required to offer PEL days, and all PEL days were unpaid. In addition, employers could request medical documentation to substantiate the need to take the leave in situations where illness was the reason for the leave.
While employers are permitted to ask for evidence which is “reasonable in the circumstances”, the Bill 148 amendments added a prohibition: an employer can no longer require that an employee provide a certificate from a qualified health practitioner[i] as evidence of entitlement to PEL.
What qualifies as evidence which is “reasonable in the circumstances” for the purposes of PEL if medical notes are prohibited?
There is very little case law on this issue and as a result there is no detailed list of what might qualify. However, some examples which appear in the case law include:
- a note from a pharmacist and a receipt for over-the-counter migraine medication; or
- copies of parking receipts for proof that an employee was at a hospital visiting their qualifying relative.
Other options could include:
- a note from a physiotherapist, chiropractor or other licensed health care provider other than the three listed in the definition of qualified health practitioner, however such notes are subject to the restrictions discussed more fully below;
- photos evidencing an accident in which the employee or a qualifying relative was involved in causing the employee to require a PEL leave;
- a letter or note from a daycare centre or school confirming that a child was required to be sent home injured or ill; or
- a published obituary would likely be considered reasonable evidence, alongside an employee’s explanation of the relative’s identity to ensure that they fall within the class of specified family members under the PEL provisions.
The publications explain that if it is reasonable in the circumstances for the employer to require the employee who took PEL to provide a note from an individual who is not a physician, registered nurse or psychologist, the employer can only ask for the following information:
- the duration or expected duration of the absence;
- the date the employee was seen by a health care professional; and
- whether the patient was examined in person by the health care professional issuing the note.
The Ministry of Labour guidance publication goes on to explain that for the purposes of proving PEL entitlement, employers cannot ask for information about the diagnosis or treatment of the employee’s medical condition. In addition to being prohibited from requiring the employee to provide a medical note with respect to PEL, the employer cannot require the employee to give details of the relative’s medical condition. The employer may only require the employee to disclose the name of the relative, and their relationship to the employee, and a statement that the absence was required because of the relative’s injury, illness or medical emergency.
It is unclear though what evidence will be required when determining PEL entitlement for “urgent matters” under the ESA. The Ministry of Labour explains in its guidance publication that an urgent matter is “an event that is unplanned or out of the employee’s control, and can cause serious negative consequences, including emotional harm, if not responded to.” One example provided by the Ministry of Labour is if the employee has an appointment to meet with their child’s school to discuss behavioural issues and the appointment could not be scheduled outside working hours. Examples of non-urgent events would be if an employee wants to leave work early to attend a rehearsal dinner for an upcoming wedding.
As of January 1, 2019, the personal emergency leave provisions of the ESA, as described above, are no longer in effect. They were in force for the duration of 2018 but have since been repealed. Currently, employees are entitled to take up to eight unpaid days off – three days for personal illness, three days for family responsibilities and two days for bereavement. Further, the provision that prohibited employers from requiring employees to present medical notes for personal illnesses was repealed. Employers have the right to require reasonable medical evidence, based upon the circumstances.
FAMILY CAREGIVER LEAVE, FAMILY MEDICAL LEAVE & CRITICAL ILLNESS LEAVE
Family caregiver leave is unpaid, job protected, time off work to provide care or support to specified family members who have a serious medical condition. Family caregiver leave can be up to 8 weeks per calendar year with respect to each specified family member. The time off does not have to be taken consecutively.
An employee is eligible to take family caregiver leave if an individual who is a qualified health practitioner issues a certificate stating that the family member has a serious medical condition, which may include a condition that is chronic or episodic.
The employer is entitled to a medical certificate which names the affected family member and states that he or she has a serious medical condition. There is no requirement that the certificate specify what the medical condition is, but it must state that it is “serious.” In addition, the employer may require confirmation of the duration of the serious medical condition to substantiate the employee’s absence. If no period is set out, the certificate simply supports absences of the family caregiver from the date it is issued until the end of the calendar year in which it issued.
Family medical leave is unpaid, job protected, time off work to provide care or support to certain specified individuals who have a serious medical condition with a significant risk of dying within 26 weeks.
An employer is entitled to a certificate from a medical doctor or a nurse practitioner stating that the individual has a serious medical condition with a significant risk of death within 26 weeks.
Critical illness leave is unpaid, job-protected time off work to provide care or support to a critically ill minor child or adult who is a family member.
In regard to a critical illness leave, an employer is entitled to a certificate from a qualified health practitioner which states that a minor child or adult is critically ill and requires the care and support of one or more family members and which sets out the period during which the minor child or adult requires the care support.
If an employee applies for federal employment insurance benefits for caregivers of critically ill minor children or adults a copy of the medical certificate submitted to Employment and Social Development Canada may also be used for the purposes of supporting an entitlement to critical illness leave.
Employers are also entitled to notification in writing from the employee that they will be taking the leave and a written plan indicating the weeks in which the employee will be taking it.
There is a form called the Medical Certificate to Support Entitlement to Family Caregiver Leave, Family Medical Leave, and/or Critical Illness Leave found here. The employee can provide the form to the applicable health practitioner and then provide the completed form to their employer. While the health practitioner is not required to use this form, it sets out the appropriate categories of information
PREGNANCY AND PARENTAL LEAVE
Pregnancy leave is up to 17 weeks of job protected, unpaid time off work. Birthmothers who take pregnancy leave are entitled up to 61 weeks of parental leave, usually beginning right after the pregnancy leave ends. Birthmothers who do not take pregnancy leave and all other new parents can take up to 63 weeks of parental leave.
Not much has changed with respect to the documentation that an employer can request from an employee to substantiate the need to take a pregnancy or parental leave. As before, an employer is entitled to notice in writing from an employee, 2 weeks before the commencement of a pregnancy or parental leave. An employer is also entitled to 4 weeks’ written notice from the employee if they are changing the end date of leave. In the event of any doubt that the employee is entitled to take such leave, an employer may request medical certification of the pregnancy with confirmation of the expected due date from a legally qualified medical practitioner[ii]. In the case of an adoption, an employer could request documentation to substantiate the date the child came into the custody of the parent.
ORGAN DONOR LEAVE
Organ donor leave is unpaid, job protected leave to undergo surgery to donate an organ to a person. Organ donor leave begins on the date of the surgery and an employee may take leave for up to 13 weeks. However, an employee may extend the leave for up to an additional 13 weeks if the employee is unable to perform the duties of their job because of the organ donation.
To extend the leave, an employer is entitled to receive a certificate from a legally qualified medical practitioner stating that the employee is not yet able to perform the duties of their job because of the organ donation and will be unable to do so for a specified period of time. The maximum leave is 26 weeks. An employer is entitled to 2 weeks written notice before the beginning of the leave or to extend it. If that is not possible, the employee must advise the employer in writing that they are taking the leave or extending leave as soon as they can after starting it.
CHILD DEATH LEAVE, CRIME RELATED TO CHILD DISAPPEARANCE LEAVE, DOMESTIC OR SEXUAL VIOLENCE LEAVE AND RESERVIST LEAVE
Child death leave is available to employees whose child dies.
Employers are entitled to a notice in writing from the employee that they will take this leave. Employers are also entitled to a written plan indicating the weeks in which the leave will be taken. An employee may take leave of up to 104 weeks with respect to the death of a child.
Crime related child disappearance leave is available to employees whose child disappears and it is probable, considering the circumstances that the disappearance resulted from crime. An employee may take a leave of up to 104 weeks for the disappearance of a child.
Employers are entitled to notification in writing from the employees that they will take this leave and employers are entitled to a written plan indicating the weeks in which the leave will be taken.
Domestic or sexual violence leave is available if an employee or an employee’s child has experienced or been threatened with domestic or sexual violence. The employee is entitled to take up to 10 days and/or 15 weeks of leave within a calendar year for the defined purposes.
An employer is entitled to notice in writing from the employee that they will be taking the leave before begins or soon as possible after it begins.
Reservist leave is available to employees who are military reservists and who are deployed to an international operation or to an operation within Canada and who are or will be providing assistance in dealing with an emergency or its aftermath. Employees are entitled to an unpaid leave for the time necessary to engage in said operation.
Employers are entitled to reasonable advance written notice of the day on which the leave will begin and the day on which it will end.
We will continue to monitor the Ministry of Labour’s interpretation of the various different leaves of absence, now that Bill 148 amendments are in effect.
In the meantime, employers should:
- Ensure that their policies and procedures on doctor’s note requirements and other proof of eligibility to take leaves of absence comply with the ESA;
- Review employment contracts to determine if any language regarding eligibility documentation in those contracts complies with the ESA; and
- Check their collective agreements and determine whether a negotiated change or a letter of understanding is required regarding eligibility documentation pending the next round of bargaining to ensure compliance with the ESA.
Patrizia Piccolo, Partner and Co-Founder
[i] A “qualified health practitioner” is currently defined as a physician, registered nurse, or psychologist qualified to practice in Ontario or in another jurisdiction in which care or treatment is provided to the employee or specified family member.
[ii] A “legally qualified medical practitioner” is currently defined as a person who is qualified to practice as a physician or a midwife, a registered nurse who holds an extended certificate of registration under the Nursing Act, 1991, or in the prescribed circumstances, a member of a prescribed class of medical practitioners.