Recent legal changes have totally revolutionized the employment landscape, leaving many employers scratching their heads. But there’s one issue that seems to have organizations more rattled than the rest – the confusing minefield of personal emergency leave days.
We spoke to Brian MacDonald, partner at Fillion and speaker at our upcoming Employment Law Masterclass, who shed some light on the mind-boggling legal jargon.
“Up until the beginning of this year, there were 10 personal emergency leave days,” explained MacDonald. “This leave could be used for an employee's personal illness, injury or medical emergency; the death, illness, injury or medical emergency of certain prescribed individuals; or an “urgent matter” that concerns certain prescribed individuals.”
Under the previous legislation these 10 days were unpaid. Employers were not allowed to penalize workers for taking them, however, staff weren’t entitled to claim pay for these days. With Bill 148 coming into force this has all changed. The 10 days are the same, but the first two days are paid which creates a lot of issues for employers in a couple of ways.
“Firstly,” explained MacDonald, “many employers have agreements that provide for certain types of leave that may or may not be caught under these provisions already. Secondly, if they’re not caught, then the employers have to give them two extra days. The legislation doesn’t allow for HR to ask for medical notes to ask why you’re taking an emergency leave day. You can still request one, but you can’t demand one. However, you can require proof reasonable in the circumstances. Employers are finding this to be an annoyance and are concerned about people abusing the system, naturally. I’ve been advising employers to just treat them as two extra paid days and simply build that into their organizational model.
“From a non-union perspective, you may have policies in place already around sick leave, bereavement leave or personal days. When you’re not bound by a collective agreement, it’s relatively straight-forward to use these days as the personal emergency days – meaning there’s no real change to operations. You might have employee morale issues surrounding this, if they workers expected you to give them two extra days – but that’s not a legal problem.”
On the union side, it’s significantly more complicated, MacDonald told us. “Most collective agreements have bereavement leave provisions and sick pay, they’ll also have float days. These are very similar to extra public holidays or vacation days. This is really where we’re seeing a lot of issues around the extra two days.”
Under the Employment Standards Act (ESA), section five, you cannot contract out of the act, but you can provide a greater type of benefit. The issue for unionized employers is whether or not their bereavement days, sick leave and float days will be considered as a greater benefit – and it’s not a simple analysis, especially regarding an ‘urgent matter’. The issue looks at whether their employers float days can be used by an employer to offset personal emergency leave days.
“There’s an old case from 2005 that says that float days can be used to offset personal emergency days, but it’s under a very specific set of circumstances. More recent case law suggests that when flex days are located in the public holidays section of the collective agreement it has requirements around it in respect to scheduling – meaning employees have to book in advance. This means it’s most likely not going to get you as an employer to a greater benefits position with respect to the ESA.
“Here, you’d probably have to offer additional personal leave days on top of what they already offer, or they’d have to renegotiate collective agreements when the time comes to insert specific language.”
McDonald will be speaking at our upcoming Employment Law Masterclass in Toronto on 10th September. See the exciting agenda and inspirational speaker line up here.
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