The Fair Workplaces, Better Jobs Act (formerly known as Bill 148) is now a reality for employers in Ontario, effective January 1, 2018. A part of the Act encompasses new Personal Emergency Leave (PEL) regulations. This part of the Act is extremely comprehensive so we’ve compiled this blog post to help share the information.

Quick disclaimer: I am not a labour lawyer, but I am an employer with a large number of staff and locations across Canada that are affected by these changes. By compiling these PEL details, our goal at Mobilize is to share this information with other seasonal and tourism/hospitality employers – to make it easy for everyone to reference. For more information about the Act, please refer to the Ontario Employment Standard Act Guide or call 1-800-531-5551.

Personal Emergency Leave – Effective January 1, 2018

All employees are entitled to ten (10) PEL days per year; the first two (2) being paid PEL days where the employee has been employed for at least one week (7 days). One week (7 days) from the employment start date is when the employee is eligible for PEL, even if they have not actively worked more than one (1) shift during this first week.

PEL applies to:

Spouse (married or unmarried couples), parent, step-parent, foster parent, child, step-child, foster child, grandparent, step-grandparent, grandchild, or step-grandchild of the employee or employee’s spouse. This also includes a relative or employee who is dependent on the employee for care or assistance.

PEL qualifications include:

1. Illness, injury or medical emergency (cold & flu, gut problems, ankle fracture etc.). Follow-up or treatment appointments for injury or illness are also applicable. For instance, this includes pre-planned elective surgery related to the injury, illness or medical emergency. NOTE: Elective cosmetic surgery does not qualify, unless it is related to an injury, illness, or medical emergency.
2. “Urgent Matter” – An unplanned circumstance (e.g., basement flooding, infant choking) that is out of the employee’s control and raises the possibility of serious negative consequences. This may only be applicable to the employee or family members (e.g., spouse, parent, child grandparent, sibling, child-in-law etc.).
3. Death – A circumstance where an individual employee needs to take time off due to the death of one of the aforementioned members. PEL related to a death can be taken well after the occurrence of death, so long as it is in relation to the death.

PEL verification: Can an employer ask for proof?

The employer cannot ask for medical documentation, such as a note from a physician, registered nurse or psychologist. It is permissible to request documentation from other types of health practitioners, such as a dentist, physiotherapist, Chinese medicine practitioner, or naturopath. If an employee has used more than ten (10) PEL days, the employer can ask for medical documentation from a physician, registered nurse, or psychologist.

The employer can technically ask for proof, however, they must consider how they ask or what they ask for. The employer can reasonably ask the employee for the reason for the PEL and request certain proof. What is determined as “reasonable” would be contingent on each individual circumstance. For example, an employer may deem it is reasonable to request an obituary or death certificate for a PEL related to a death.

Important Notes to Consider

Employers should ask if it is really necessary to ask for certain verification in order to substantiate the information. Consider trends of punctuality, absenteeism and behaviour, the plausibility of the claims, and the ease of access to evidence (e.g., would the verification documents be easy to obtain?).

Employers must be very cognizant of the employee’s right to privacy. There is nothing in the act that requires the employee to tell them the reason for their PEL.

Employee responsibilities for PEL: Required notice

Employees do need to provide notice when taking PEL – either prior to, or immediately after, taking the leave. PEL notice does not have to be in writing. Different forms of communication (e.g., text, email, phone call) are permissible.

If an employee fails to provide notice, they are still eligible for the PEL.

Employees can be disciplined for not providing notice. If the employee does not provide reasonable notice, either before or immediately after, there can be appropriate discipline for the circumstance.

Employee compensation for PEL leave

1. Hourly employee – If an employee takes a PEL, the employer shall pay the employee wages they would have earned on the date of absence. For example, if an employee misses a scheduled six (6) hour shift because of a PEL, they shall be paid their regular rate multiplied by the number of hours they were scheduled (6).
2. Salary employee – If an employee takes a PEL, they shall be paid their daily rate, which is calculated by their salary divided by the number of days in a pay period.
3. Performance-related Wages – Commission, Piece Work – If an employee takes a PEL, they shall be paid the greater of the employee’s hourly rate, if any, and the applicable minimum wage for the number of hours the employee would have worked had they not taken the leave. Employers do not have to pay tips or gratuities for roles in which it may be applicable. For example, Server’s will only have to be paid the regular minimum wage rate for Server’s for PEL time off and not any tips and gratuities.

PEL on public holidays & overtime

If an employee takes a PEL on a day where overtime, a shift premium, or holiday pay would be payable, the employee is not entitled to more than their regular rate for any leave taken.

If an employee takes a PEL on a shift before or after a public holiday, they will still be entitled to public holiday pay.

How to address PEL under particular circumstances

Unpredictable or irregular shifts

For circumstances where there the duration of the shift(s) has not been determined, the employer needs to calculate the number of hours the employee would have worked. The calculation of hours must be reasonable and can be determined by considering how long the employee’s replacement, if any, worked for that time off or how many hours other employees who worked in similar roles worked for the duration the employee has taken PEL.

Greater right or benefit

If an employment agreement provides a greater right or benefit, in other words, it goes above and beyond the minimum standards outlined in the Employment Standards Act (ESA), then the provisions of the agreement prevail over the Employment Standards Act (ESA).

If an employee takes a PEL for the same reason that is covered by one of the provided benefits of the employment agreement, the employer can apply this personal leave for both benefits. For example, if an employee takes a PEL because of an illness and the employment agreement does provide the benefit of ‘Sick Leave’, the employer can draw from both the PEL, under the ESA, and the ‘Sick Leave’ under the employment agreement.

Partial absence

If an employee takes partial time off during a PEL, the employer decides whether it is considered a partial or full day. For instance, if an employee working a scheduled eight (8) hour shift, works three (3) of the hours and takes the remainder of the shift off for PEL, they will be paid for the three (3) hours worked and the employer will determine whether the remaining five (5) hours are considered a full PEL day or a five (5) hour block.

Unauthorized absence

If an employee is aware of their right of Personal Emergency Leave under the ESA, and decides to not consider their time off as a PEL, or any other statutory protected leave under the ESA, the employer can deem it as an unauthorized absence that is not protected by the ESA.

Entitlements

The employee continues to receive certain entitlements while on PEL. These include Job-Protected Leave, Benefit Plan Enrollment and Vacation. Employees will still receive credits towards their length of employment unless they are in the probationary period. If employees are in the employment probationary period, the time off during PEL may not be considered days towards employment term.

If an employee was due to receive a wage increase on a given date, and the employee happens to be taking PEL during on this date, the employee will still be eligible for that wage increase.

An employee may be entitled to more than one leave for the same event. When considering other leaves under the ESA, such as Family Care-Giver Leave, Family Medical Leave, Domestic and Sexual Violence Leave, Child Death Leave and Crime Related Child Disappearance Leave, some of them may overlap with an employee’s reasoning for PEL.

What employers need to do in initial PEL years to mitigate risk

As I am sure you can tell, any uncertainty around labour law leaves everyone exposed. For the next few years we should all err on the side of caution here, and as always, take detailed notes – document everything. It would be one thing if we could simply add on a paid vacation day, or define what an actual personal emergency is. Playing out the worst case scenario, how can we protect against an employee from wanting a paid long weekend after a week? How can we stop an employee from going home during the busiest two weeks of the summer because they are homesick? Our industry, particularly those in seasonal roles where we already lose students during the two busiest weeks of the summer, will be very negatively affected by this.

The direction I have been given by the industry is to adapt internal company policy to incorporate the bill, and enforce that policy. That means clearly outlining what a personal emergency is, and what the correct procedure for taking the leave is. Clearly define your job abandonment policy and explain that if an employee takes a PEL day on a three hour shift, they are not entitled to a paid 8 hour day.

Remember this nuance though, it is required that the 2 paid days be used first. These 2 paid days can be taken in part, full or multiple days and cannot be carried over to the following year. Employees are entitled to more than one leave for the same event. Each leave is separate and independent of any right an employee may have to any other leave(s).