Tuesday, 29 August 2017

Entitlement to Bereavement Leave in Ontario

How much paid bereavement leave is an employee entitled to in Ontario? And what constitutes “evidence reasonable in the circumstances” to demonstrate entitlement to personal emergency leave?

If you are reading this post, you are likely reading this at an unfortunate time in your life or that of someone close to you.

As of January 1, 2018, employees employed for more than one week are entitled to two days of paid personal emergency leave. One of the ways in which such paid leave can be used is in the event of a death of an individual described below:

  1. The employee’s spouse.
  2. A parent, step-parent or foster parent of the employee or the employee’s spouse.
  3. A child, step-child or foster child of the employee or the employee’s spouse.
  4. A grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee’s spouse.
  5. The spouse of a child of the employee.
  6. The employee’s brother or sister.
  7. A relative of the employee who is dependent on the employee for care or assistance.

Pursuant to subsection 50(3) of the Employment Standards Act, 2000, an employee who wishes to take such leave must advise his or her employer that he or she will be doing so. However, if the employee must begin the leave before advising the employer, the employee must advise the employer of the leave as soon as possible after beginning it.

Other rules apply as to how and when such paid leave may be taken. Most importantly, the total number of paid days of personal emergency leave per year is two, meaning that an employee who used his or her two days of paid personal emergency leave for a personal illness would not also be statutorily entitled to an additional two days of paid personal emergency leave for bereavement - although nothing would prevent one's employer from providing such paid leave.

Evidence Reasonable in the Circumstances

Subsection 50(12) of the ESA provides that, "an employer may require an employee who takes leave under this section to provide evidence reasonable in the circumstances that the employee is entitled to the leave." The law provides no guidance as to a whether a selfie with the casket, a la George Costanza would be sufficient.

In the case of Access Alliance Multicultural Community v Health, Office, Professional Employees and Education Division of UFCW, Local 175, 2012 CanLII 95768 (ON LA) Labour Arbitrator Peter F. Chauvin did consider what constituted “evidence reasonable in the circumstances” and held as follows:

[27] Determining what is “reasonable in the circumstances” requires a balancing of the rights and the interests of both the employee and the employer. The employee has a statutory right to the emergency leave. The employer has the right to operate its business in a productive manner. Both the employee and the employer must comply with the Act, and have an interest in working together harmoniously to ensure that the emergency leave provisions are used properly and productively. Ideally, employees and employers will work cooperatively to ensure that this goal is achieved. Achieving this goal is optimized when the employee provides the best evidence that is reasonably available to establish that he is entitled to a personal emergency leave.

[28] The evidence requested should also bear proportionality to the emergency leave. For example, if the emergency leave is for only one day, and there are no other extenuating circumstances, the employee’s own statement may be sufficient, and it may not be reasonable to require an employee to incur the time and expense of obtaining other evidence, such as a medical certificate, to verify his mother’s illness. However, where there are grounds to question the legitimacy of the request, it may be reasonable to require evidence greater than the employee’s own statement.

[29] An example of reasonable, balanced and proportionate evidence is found in Tilbury Assembly, in which Arbitrator Crljenica ruled, on the particular facts of that case, that it was not reasonable for an employer to require a note from a doctor to verify that an employee had a migraine, because it was not necessary for the employee to see a doctor for the migraine, but rather a note from a pharmacist and a receipt for migraine medicine was sufficient “evidence reasonable in the circumstances”. Similarly, there may be circumstances in which it is reasonable for the employee to provide other evidence such as parking receipts as proof that he was at a hospital with his mother.

[30] Where there are grounds to question the legitimacy of the request, and it is reasonable under the circumstances for the employer to request and the employee to obtain a medical note, an employer may request a medical note from the employee to verify the mother’s illness. If the mother will provide her consent for the release of this information, it will be the best evidence to verify the entitlement to the emergency leave. It is in the best interests of the parties, and it promotes good labour relations, to verify the illness in this manner, if it is reasonably possibly to do so. The employer is not entitled to a detailed medical certificate, stating the diagnosis or treatment plan, but rather may only request a note verifying the mother’s illness.

[31] However, if the mother will not provide her consent for the release of this information, or if on the facts of the case it is not “reasonable in the circumstances”, or it is disproportionate to request such a medical note, the employer will have to consider what other evidence is “reasonable in the circumstances”. It may be that there are no extenuating circumstances, and the mother's illness did not require that she be seen by her doctor, and for these reasons, as in the Tilbury Assembly case, it is not reasonable to require the son to obtain a doctor's note to verify her illness. In some cases there may be no other better and available evidence than the employee providing his own statement or attestation confirming that his mother was ill.

[32] It is in the best interests of the employer to act as reasonably as possible in determining what evidence it believes is “reasonable in the circumstances”, and for the employee to act as reasonably as possible to provide the best evidence he can provide, to establish that he is entitled to a personal emergency leave due to his mother’s illness. Ultimately, whether the employer is requesting evidence that exceeds “evidence reasonable in the circumstances”, or whether the employee is failing to provide evidence that is “reasonable in the circumstances”, is a question of fact and law that will have to be decided, if the parties cannot resolve the issue themselves, by an adjudicator.

[33] This is the best answer that I can provide to the generic question that has been put to me. I have not been given any information regarding what evidence Access Alliance asked the Grievor to provide, or what evidence the Grievor did provide to Access Alliance. In the absence of this information, I cannot provide any specific rulings upon whether Access Alliance or the Grievor violated Section 50(7). However, I trust that the principles set out of this Award will provide assistance to the parties in resolving any outstanding issues that they may have regarding Section 50(7).

What that means is that if evidence is requested, something may be required – although a signed statement may be enough. By the same token, I suppose that a "selfie" might also be sufficient evidence.

Changes to the Law

Before January 1, 2018, there was no such thing as a statutory right to paid bereavement leave. However, Bill 148, the Fair Workplaces, Better Jobs Act, 2017 changed section 50 in three substantial ways:

  1. Section 50 (Personal Emergency Leave) was amended to provide personal emergency leave to all employees, not just employees of employers who regularly employ 50 or more employees.
  2. In addition, two days of personal emergency leave are now required to be paid days. The paid days would have to be taken before any unpaid days of personal emergency leave in a calendar year.
  3. The reasons for which this leave may be taken are amended to include experiencing sexual or domestic violence or the threat of sexual or domestic violence.

Note that employers will retain the right to require evidence of entitlement to these days, but will not permitted to require a certificate from a qualified health practitioner.

Takeaways for Employees with Labour Pains

There is never a good time for a personal emergency. For most employees, such time will be paid, notwithstanding the strict letter of the law. Some employees may have a contractual entitlement to such paid leave and it always bears consideration of such contract.

If you are an individual looking for assistance with respect to your legal entitlements, contact the professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP; we would be happy to be of service to you.

Takeaways for Employers with Labour Pains

The takeaway for employers is that as of January 1, 2018, there can be a statutory obligation to provide paid bereavement leave. However, nothing prevents an employer from providing further paid leave. Many employees, especially those with long service, will likely expect it.

If you are an employer and you would like some assistance with respect to your employment law obligations, contact the professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP; we would be happy to be of service to your business or organization.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.

Sean P. Bawden is a partner with Kelly Santini LLP, located in Ottawa, Ontario, Canada. He practices in the areas of employment law and civil litigation. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College in Ottawa.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Photo Credit: (c) istock/Smileus

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