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The COVID-19 pandemic has had several negative impacts on many Canadians. Statistics Canada revealed stress levels of Canadians have doubled since the onset of the pandemic, with Canadians experiencing fear and uncertainty relating to health, finances, and their employment. A recent survey of Canadian workers revealed that 81% of those surveyed reported that the pandemic negatively impacted their mental health.

Considering the increase of employees experiencing a decline in their mental health, in this blog we at Sultan Lawyers discuss everything you want to know about stress leave and employment in Ontario.

WHAT IS STRESS LEAVE?

Stress can cause an intense impact on your mental and physical health. It is critical that employees are aware of their mental and physical health at work, and while living their daily lives. While stress alone should be identified and treated appropriately, it can also be viewed as a gateway to other moods that can take a toll on all aspects of your life, including: your own physical and mental health, your relationships, your job, motivation, energy levels, appetite etc. In terms of mood, stressed individuals are more likely to feel restless, anxious, depressed, or experience a lack of motivation.

For reasons mentioned above, stress is intricately linked to mental health and wellness, and thus is associated under the legal umbrella of “sick leave”. Severe stress can be viewed as a sickness, and therefore entitles someone to “sick leave” if reasonable given the circumstances.

Individuals who experienced severe stress are eligible to take “sick leave”, whether it is under the Employment Standards Act, 2000 or under a policy included in their employment contract.

SICK LEAVE AND THE EMPLOYMENT STANDARDS ACT, 2000

In accordance with the Employment Standards Act, 2000 (the “ESA”), an employee who has been employed by an employer for at least two consecutive weeks is entitled to leave without pay due to a personal illness, injury, or medical emergency. Under the Employment Standards Act an employee entitled to sick leave can take up to three unpaid days of leave each calendar year due to personal illness, injury, or medical emergency. Employees can also take half-sick days, and the employee must be paid for the hours worked during that day.

SICK LEAVE UNDER AN EMPLOYMENT CONTRACT – WHAT’S THE DIFFERENCE?

If there are no specific provisions about sick leave in an employee’s contract, the employee is entitled to three unpaid days in accordance with the Employment Standards Act. Alternatively, if an employee takes a leave of absence under an employment contract that provides a greater advantage (i.e., paid leave, longer leave, minimal notice etc.), then the terms of the contract will apply instead of the Employment Standards Act. An employment contract may also indicate paid or unpaid days off for “stress leave” specifically, rather than including stress leave as sick leave.

Further, it is the responsibility of the employee to advise their employer of their sick leave. This notice can be oral or in writing. In particular circumstances, failing to provide notice to an employer is not possible, the employee will not lose their right to their sick leave.

WHO IS ELIGIBLE FOR SICK LEAVE?

An employee is eligible to take sick leave for reasons relating to physical or mental illnesses, injuries, and medical emergencies. The illness, injury or medical emergency does not need to be linked to the employee’s work and can be caused by internal or external factors beyond their control. Stress leave can also be considered under other types of leaves aside from “sick” leave, such as family caregiver leave or bereavement leave.

For example, an employee who broke their elbow mountain biking, or sprained their ankle while walking their dog, the employee would still be entitled to sick leave, even if the injury resulted from their own carelessness or not.

Additionally, employees are eligible for sick leave for the purpose of pre-planned medical surgery, related to an illness or injury, even though it is typically scheduled ahead of time and is not considered a medical “emergency”.

However, requesting sick leave for cosmetic surgery, or unnecessary surgeries are protected under the Employment Standards Act and generally does not entitle the employee to a short or long-term leave.

CAN MY EMPLOYER DEMAND A MEDICAL NOTE?

A straightforward answer would be yes. In Ontario, employers can legally request their employee to provide a medical note from a doctor, nurse, psychologist, or other practitioner stating reasons as to why they are unable to work. However, in relation to stress leave specifically, the note does not need to identify stress as the primary reason the employee requires a leave of absence. Requests for medical notes are less common for short leaves.

If an employer wishes to know more about an employee’s leave, they may ask reasonable questions relating to facts of their specific situation as it relates to their position of employment such as:

  • the expected duration of the employee’s absence;
  • the date that the employee was seen by a medical professional; and
  • whether the patient was examined in person.

Employers are not permitted to ask for information relating to the diagnosis or treatment of the employee’s medical state.

UNPAID SICK LEAVE AND HOW TO RECOUP LOST FINANCES

Here we explain four potential avenues for receiving compensation for sick leave if applicable. Typically, these options are available for longer leaves where there is more severe reasoning behind the leave.

1.      Disability Insurance and Stress Leave

If an employee has a short-term disability policy through their employment, they may be eligible to obtain disability insurance while on stress leave. However, this would apply to situations of severe stress and or stress associated with other mental illnesses such mood or anxiety disorders that disable the employee from working.

If in another scenario, an employee’s illness or medical condition is considered a disability, the employer has the duty to accommodate the employee in accordance with the Ontario Human Rights Code.

Some examples relating to workplace accommodations are:

  • Modify the presentation of training materials
  • Offering flexible working hours
  • Restructuring the position and or altering tasks
  • Ensuring accessibility requirements are met

2.      Employment Insurance and Stress Leave 

Again, in severe situations relating to stress, an employee has potential to collect Employment Insurance compensation while on stress leave. The basic rate for calculating Employment Insurance (EI) benefits is 55% of the employees’ average insurable weekly earnings, up to a maximum amount. As of January 1, 2022, in Canada the maximum yearly insurable earnings amount is $60,300. This means that you can receive a maximum amount of $638 per week. The number of weeks you can collect EI depends on the unemployment rate in your region at the time of filing your claim and the amount of insurable hours you have accumulated in the last 52 weeks or since your last claim.

3.      Workplace Safety Insurance Benefits and Stress Leave

An employee may be entitled to benefits under the Workplace Safety Insurance Board if the stress experienced is linked to their workplace or position of employment. With that being said, it must be a substantial work-related physical or psychological stressor. If an employee has experienced significant stress from work, they are able to file a claim with WSIB with the potential of receiving compensation.

4.      Constructive Dismissal and Workplace Stress

Lastly, similarly to a Workplace Safety Insurance Board claim, if the employee’s stress was generated from their place of work by experiencing severe psychological or physical stress, the employee can file a constructive dismissal claim. Claiming constructive dismissal may entitle the worker to severance if they felt forced to end their employment relationship. An employee who successfully claims constructive dismissal could also be entitled to various damages, including monetary compensation.

CONTACT SULTAN LAWYERS FOR MORE INFORMATION

If an employee or employer is seeking advice navigating sick leave in Ontario, we strongly recommend consulting legal counsel. We encourage you to contact Toronto employment lawyers, Sultan Lawyers for a free call back or flat-rate consultation. Please contact us by telephone at 416-214-5111 or via email at khayward@sultanlawyers.com.


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