Personal Emergency Leave: Recent Developments

Update: Please note that on October 23, 2018 the PC government introduced legislation (Bill 47) that would repeal the Personal Emergency Leave provisions of the ESA.  This means that the analysis below will have implications for any existing grievances and claims that arise up to the date that the Bill 47 comes into effect.  Bill 47 does not apply retroactively.

Updated: 19 October, 2018

Ontario Premier Doug Ford has publicly announced his intention to scrap Bill 148, the Fair Workplaces, Better Jobs Act, 2017, to “make sure we’re competitive around the world” and to “protect front-line workers.” Bill 148 introduced a number of amendments to the Employment Standards Act, 2000 (“ESA”), such as increasing the minimum wage and mandating paid Personal Emergency Leave (“PEL”). Whether Ford’s intention to scrap the Bill will actually be carried through remains uncertain, considering the Economic Development Minister’s assertion that “There are parts that we will keep and there are parts that probably will go.” While we await the PC government’s next move, arbitrators continue to interpret the new provisions of the ESA.

Major Changes to Personal Emergency Leave Provisions

Bill 148 made significant changes to the PEL provisions of the ESA. Whereas the ESA formerly required employers with 50 or more employees to provide employees with 10 unpaid PEL days per calendar year, the ESA now requires all employers (other than those specifically exempted under the Regulations) to provide employees with 2 paid PEL days, in addition to 8 unpaid PEL days, per calendar year.

While the ESA continues to allow employers to require employees to provide “evidence reasonable in the circumstances” that they are entitled to the leave, the ESA now prohibits employers from requiring certificates from qualified health practitioners as evidence.

Additionally, the ESA now stipulates rules regarding the rate of pay to which an employee would be entitled when the employee takes a paid PEL day on a day or at a time when overtime pay, a shift premium or both would be payable by the employer. The ESA continues to provide that, where the provisions of a collective agreement or employment contract provide a greater benefit in comparison with an employment standard, the collective agreement or employment contract will prevail. These rules have recently come under arbitral scrutiny in Ontario. Examples are summarized below.

Arbitrator Clarifies Rules on Personal Emergency Leave Eligibility and Use

In The Corporation of the Town of Oakville v. Oakville Professional Fire Fighters Association, Local 1582 (rendered on September 9, 2018), the arbitrator considered the grievor’s entitlement to a paid PEL day in circumstances where the grievor refused to provide reasons and documentation to support his absence. The grievor advised that he would be attending to a “personal family matter”, but declined to provide further detail, stating that according to “Liberal legislation”, he had no obligation to do so. As a result, the employer did not pay for the grievor’s leave, and a grievance was filed.

As pointed out by the arbitrator, the ESA requires employees to advise employers that they will be taking a PEL and allows employers to require them to provide evidence (other than a certificate from a qualified health practitioner) of their entitlement to the leave. The arbitrator interpreted these requirements to mean that “employees who wish to take a PEL day are required to advise an employer of the nature of the request and provide reasonable evidence.” More specifically, an employee must provide sufficient particulars to allow the employer to determine whether the reason for the employee’s request falls within the reasons enumerated in the ESA, i.e., a personal illness, injury, medical emergency, death in the family, etc.. According to the arbitrator, the grievor’s indication that he had a “family matter” was insufficient to convey the nature of the grievor’s request and whether it reasonably required him to be absent from work. For these reasons, the grievance was dismissed.

This decision clarifies an employer’s rights when managing employee use of PEL. Where employees fail to advise of the nature of their requests or to provide reasonable evidence to substantiate the nature of their absence, employers will be justified in refusing a PEL day.  While paid PEL may well go by the wayside under the PC government, the principles in this case will continue to apply.

Breadth of Availability Key to Greater Right or Benefit s Defence

Similar to the case discussed above, the decision of United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Services Workers International Union, Local 9235 v. St. Marys Cement (rendered on September 14, 2018) involved an assessment as to whether the entitlements under a collective agreement provided a greater right or benefit than the statutory PEL entitlement, such that the entitlement to pay for two days of PEL is displaced.

In conducting the analysis, the arbitrator stated that the totality of the benefits under the employment standard in question, i.e., PEL, must be measured against the totality of the benefits of the same subject matter under the collective agreement, in both cases, taking account of the good and the bad. The arbitrator considered this approach to be consistent with the arbitral caselaw, including the recent decision of USW, Local 2020 and Bristol Machine Works Ltd. (GB-01-18).

The arbitrator stated that paid bereavement leave, weekly indemnity and long-term disability arguably all relate to the same subject matter as PEL. The arbitrator did not, however, reach this conclusion with respect to: shift premiums, break premiums, vacation pay, paid holidays, jury duty pay and a $1,000 annual security payment that may be accessed upon retirement, leaving employment or lay-off.

After weighing the statutory PEL entitlement against the bereavement leave, weekly indemnity and long-term disability provisions of the collective agreement, the arbitrator concluded that the collective agreement did not provide a greater right or benefit than the statutory entitlement. This was due primarily to the fact that, under the ESA, paid PEL days could be taken in circumstances not covered by the collective agreement provisions.

For example, while the bereavement leave provisions allowed employees to take up to 3 days paid bereavement leave, per death, and could be accessed as many times in a year as applicable, the range of relatives in relation to which such leave could be taken was narrower than that provided under the ESA. Furthermore, the collective agreement provisions did not cover the wide range of situations in which an “urgent matter” might affect a relative of the employee, situations for which an employee could take a paid leave under the ESA. The arbitrator stated, “While it is important to consider the length of the benefit provided (i.e., the long-term personal disability benefits provided under the collective agreement) it is equally important to consider the extent to which the benefits in question may in fact be accessed.” The breadth of the statutory entitlement, and the frequency with which it could be claimed, was unsurpassed by the narrower collective agreement benefits.

This case raises the question of whether paid sick benefits provided and taken under a collective agreement or employment contract could count against an employee’s entitlement to paid PEL. On the basis of the reasoning in this case, the answer would appear to depend on the wording of the sick benefits in question. If the benefits are sufficiently broad to allow employees to take paid leaves of absence in the same manner and under the same circumstances in which they may take paid PEL, the provision could arguably displace entitlements to paid PEL. The recent decision of Bristol Machine Works Ltd. sheds some light on how the greater right or benefit analysis may be applied to collective agreement provisions providing income protection for sickness.

The looming possibility of Bill 148 being repealed suggests that employers may soon need to change their approach to providing contractual benefits. In the meantime, employers should ensure they understand all the circumstances under which statutory benefits, as they currently stand, may be claimed. If employers wish to provide employees with a contractual right or benefit in substitution for their statutory entitlements, they should see to it that the contractual right or benefit can be accessed in the same manner and under the same circumstances as the statutory entitlement. Otherwise, they run the risk of employees claiming entitlement to both.

No Premium Pay for Paid PEL Days Falling on Premium Shifts

In the decision of Belden Canada Inc. v. United Steelworkers (rendered on September 14, 2018), the arbitrator was required to determine whether the grievor was entitled to premium pay – i.e., time and a half for the first 8 hours and double time for the next 4 hours – on the basis that he took a paid PEL day on a Sunday, which attracted premium pay. If the grievor had worked this shift, he would have received 20 hours of pay for 12 hours of work. The question under review was thus whether the grievor was entitled to 12 or 20 hours of pay for taking a paid PEL day on a day which, if worked, would entitle him to 20 hours of pay for 12 hours of work.

As noted by the arbitrator, the answer is in the ESA: if a paid PEL day falls on a day or at a time of day when overtime pay, a shift premium or both would be payable by the employer, the employee is not entitled to more than his regular rate, and is not entitled to the shift premium. The arbitrator held that premium pay for working on a Sunday was determined by applying the applicable premiums to the grievor’s regular rate of pay for the hours worked. In other words, had the grievor worked on the Sunday, he would not have been paid for 20 hours of work at his regular rate of pay but, rather, would have been paid for 12 hours of work at the premium rate of pay. While this distinction is subtle, and makes no difference in terms of calculating premium pay for hours actually worked, the distinction is important for the purpose of calculating pay for a PEL. Since employers have no statutory obligation to pay more than the regular rate of pay to employees who take a paid PEL day on a day which attracts premium pay, the arbitrator determined the grievor was only entitled to 12 hours of pay at his regular rate.

The takeaway for employers is simple: you do not need to pay a premium rate, or pay for extended hours of work at the regular rate, to employees who take paid PEL days on days which, if worked, would attract premium pay. Rather, your obligation is solely to pay the employee’s regular rate of pay for the number of hours constituting the employee’s shift.

PooranLaw will continue to monitor the case law developments and the PC government’s activity in respect of PEL and Bill 148 generally.  Stay tuned for more information on how this evolving situation will affect your organization.