'If the proposed leave is passed into law, it will create new protections for employees and new obligations for employers'
Ontario’s consultation on possible amendments to its Employment Standards Act, 2000 (ESA) that provide job-protected leave to workers is coming to a close on Monday.
Launched early in April, the consultation seeks input from stakeholders on a potential new long-term job-protected leave of up to 27 weeks and will close next week. That would align Ontario’s leave with the length of Federal Employment Insurance (EI) sickness benefits and provide Ontario workers with the longest job-protected sick leave among the provinces and territories.
Under the ESA in Ontario, there are 14 leaves of absence that provide job protection to employees for various reasons. Employees, whether full-time, part-time, permanent, or contract, who are covered by the ESA, may be entitled to these leaves.
However, there have been calls for stronger job protection for employees living with serious illnesses, needing stability and job security, noted the Ontario government.
2 possible approaches to new leave under Ontario’s ESA
The government is considering two possible approaches.
One is to expand the existing critical illness leave in the ESA to apply to critically ill employees and align the leave with the length of EI benefits.
“‘Critically ill’ means that the individual’s baseline state of health has significantly changed, and their life is at risk. This definition would exclude individuals with a chronic illness or condition that is their normal state of health,” said Steven Dickie, partner for employment and labour, and Melanie Simon, associate for employment and labour, at law firm Osler.
The second consideration is to create a new leave for employees with a “serious medical condition,” they said in their blog.
“This approach would not require the employee to be at significant risk of death and would include a condition that is chronic or episodic. It appears that under this second possible approach, there may be materially more situations in which employees could access the leave,” they said.
In November 2023, Ontario said it will mandate a new critical illness leave for workers.
Possible new ESA obligations for employers
Employers should monitor the progress of the consultation as it could mean that they have new obligations, said Dickie and Simon.
“As with other protected leaves under the ESA, one might expect the proposed legislation to include protections for employees from reprisal, as well as the right to continue participating in certain benefit plans during the leave,” they said.
The two lawyers also said that the proposed statutory job-protected leaves being considered under the ESA would “go further in terms of requiring employers to reinstate employees who qualify for and avail themselves of the leave to their previously held position, or a comparable position if such previously held position no longer exists”.
Their advice: “Employers should plan for managing their workforces in light of employees utilizing the potential new leave, and the potential cost of providing benefits continuance during such period. Employers should also plan to revise any policies setting out statutory leave entitlements and consider the intersection of the new statutory leave with any existing paid sick leave and short-term and long-term disability policies.”
Ontario had earlier proposed legislation that would provide job-protected leave for reservists who would require physical and mental treatment after their service.
