September 18, 2002

Is Emergency Leave Different from Sick Days?

Question: I am aware that under Ontario ’s Employment Standards Act, 2000, our company is required to provide 10 days of leave to our employees for emergency time off. Are these days in addition to the regular paid sick days that our company already gives to employees?

Answer: In Ontario , employers who regularly employ 50 or more employees are required to provide up to 10 unpaid days of “emergency leave.” Although the ESA, 2000, refers to it as “emergency leave,” the 10 unpaid days of leave can 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.

These “prescribed individuals” include: the employee’s spouse or same-sex partner; a parent, step-parent or foster parent of the employee, the employee’s spouse or the employee’s same- sex partner; a child, step-child or foster child of the employee, the employee’s spouse or the employee’s same-sex partner; a grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee’s spouse or same-sex partner; the spouse or same-sex partner of a child of the employee; the employee’s brother or sister; and the relative of the employee who is dependent on the employee for care or assistance.

As many employers do, you permit your employees to take a limited number of paid sick days. These days of paid leave go towards fulfilling your obligation to provide employees with 10 unpaid days of emergency leave. In other words, as long as the employer provides at least 10 days of unpaid leave per year, the employer can choose to compensate a number of those 10 days at full, partial or no pay.

However, as an employer you will find that many employees think they are entitled to both their employer’s paid sick days as well as the government’s 10 days of unpaid leave per year. This is not the case, and therefore companies should ensure internal policies are clear so employees fully understand their entitlements to paid and unpaid leave.

Employers should also make sure their internal sick day or personal days-off policy includes the breadth of circumstances that justify a leave under the ESA, 2000. Many employers only permit time off for the illness of the employee, whereas the ESA, 2000, recognizes the death, illness, injury, medical emergency or urgent matter of a family member as justification for a leave.

It should also be noted that an employer has a right to require evidence of the reason for the leave, such as a medical note or death certificate. Furthermore, employees are not allowed to accumulate or accrue unpaid emergency leave from year to year.

Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or pi@israelfoulon.com. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today

LEGAL DISCLAIMER: This article is for informational purposes only and is not intended to provide legal advice, which in all circumstances must be tailored to the specific facts of any problem. You should obtain a proper legal consultation in order to determine how this article applies to your specific situation.
Please feel free to contact Israel Foulon LLP to learn more at 416-640-1550.

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