DVCLS Sends Letter to Minister on Personal Long-Term Illness Leave under the ESA
The Ontario Ministry of Labour, Immigration, Training and Skills Development offered a consultation on a proposed personal long-term illness leave. DVCLS’ Employment Law Team sent in the following submission.
Dear Minister Piccini:
Re: Consultation on Personal Long-Term Illness Leave under the Employment Standards Act, 2000
We are writing to provide our feedback to the Ministry of Labour, Training and Skills Development (the “Ministry”) in the consultation on the proposed personal long-term illness leave. At the outset, we wish to applaud the proposal of a long-term personal illness leave, and the initiative taken to consult the public on this important issue. In reflecting on this consultation process, it became apparent how necessary a personal illness leave is under the Employment Standards Act, 2000 (the “ESA”).
Per the consultation paper, we understand that the intention is to provide a leave of an equivalent length to the sickness benefits provided pursuant to the Federal Employment Insurance Act. Employment Insurance (“EI”) sickness benefits now provide twenty-six weeks of benefits, following a claimant having served the one-week waiting period. A personal illness leave of this length seems highly appropriate in the circumstances. We anticipate that it will be greatly beneficial to not only the low-income people within our clinic’s catchment area, but also precarious workers across the province.
Background on Don Valley Community Legal Services
Don Valley Community Legal Services (the “Clinic”) is one of the seventy-one community legal clinics in Ontario funded by Legal Aid Ontario pursuant to the Legal Aid Services Act, 2020.
The Clinic provides free legal services for low-income people living in our catchment area (from Lake Ontario to York Mills/the 401 and from Yonge Street/the Don River to Victoria Park Avenue). The Clinic provides full legal representation, and summary advice in four core areas of law, being Employment Law, Housing Law, Immigration Law, and Income Supports.
Our Employment Law Team has a very broad practice, which is necessary to address the challenges faced by low-income, and precarious workers in our very diverse catchment area. We represent clients in matters relating to: the ESA; the common law contract of employment, including wrongful dismissal; the Human Rights Code (the “Code”); the Occupational Health and Safety Act; and the Employment Insurance Act. In our Employment Law practice area, we see consistently that it is the integration of the applicable protective legislation for workers, which provides a framework for the best approximation to justice for low-income working people in Ontario.
Personal Long-Term Illness Leave under the ESA
We have reviewed the Consultation Paper on Personal Long-Term Illness Leave. We understand that the Ministry is interested in obtaining views on two possible approaches.
1) Expanding the existing critical illness leave under the ESA to critically ill employees. Critically ill, as defined in the ESA, means an individual’s baseline state of health has significantly changed and whose life is at risk as a result of an illness or injury. “Baseline state of health” is a medical term, which calls for a qualified health practitioner to make an assessment as to whether an individual’s “baseline state of health” has significantly changed. The term “critically ill” excludes individuals with a chronic illness or condition that is their normal state of health, even if that normal state is considered to be life-threatening in the medium- to long-term. We understand that under this approach, an employee would require a qualified health practitioner (as defined by the ESA) to issue a certificate stating that the employee is critically ill; or
2) Creating a new long-term job-protected leave for employees with a serious medical condition. The ESA does not define serious medical condition. Under the ESA’s family caregiver leave, an individual is considered to have a serious medical condition if a qualified health practitioner (as defined by the ESA) issues a certificate stating that the individual has a serious medical condition. The individual does not need to be at significant risk of death to be considered to have a serious medical condition. The phrase is intended to include a condition that is chronic or episodic. Employees would be entitled to the leave, if a medical practitioner issues a certificate stating that the employee is unable to work due to their serious medical condition. Under this second proposal, the leave could be taken for chronic conditions and serious illnesses that are not necessarily life threatening.
In both cases, the length of the leave would align with EI sickness benefits (i.e., twenty-six weeks plus a one-week waiting period).
Based on the Clinic’s significant experience advising and representing employees, we have some concerns we wish to express about both proposals. We further wish to share our proposed amendments for the Ministry’s consideration.
Possibility of Creating Burden and Challenges in obtaining Medical Documentation
Both of the current proposals require qualified health practitioner to engage with legal definitions (“critically ill” and “serious medical condition”) in providing certificates for employees with illnesses who are requiring a job-protected leave. In our experience, qualified health practitioners are not always best positioned to interpret complex definitions provided for in legislation in relation to their provision of healthcare. We are concerned that these definitions could impose undue burdens, not only on the qualified health practitioners themselves, but also on the employee (who, given the purpose of the leave, would be experiencing an illness so debilitating that they are unable to work). This could result in improper denial of medical certificates; provision of accepted medical certificates to employees whose medical conditions do not in fact align with the definitions under the ESA; and/or multiple visits of an already very unwell employee to their qualified health practitioner to obtain accurate, acceptable medical certificates.
Possibility of Creating Misunderstandings for Employers regarding their Legal Obligations in relation to Employees with Disabilities
We believe that there is a very real possibility that either leave could cause employers to misunderstand their legal obligations in relation to employees with disabilities. In this regard, we draw on a holistic approach, which the Clinic is able to provide by virtue of our broad Employment Law practice area. In Ontario, in addition to obligations under the ESA, employers also have obligations in relation to employees with disabilities under the Code. Employers in Ontario are obliged to accommodate an employee with a disability up to the point of “undue hardship”. Undue hardship is a legal term with various complex aspects. For the purpose of this consultation, it is worth mentioning that, in our experience, unpaid job-protected leaves are quite common accommodations necessitated by the Code in relation to employees with disabilities. The Code at section 10(1) defines disability as follows:
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(d) a mental disorder, or
(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”).
As is likely apparent upon review of the above definition, the definition of disability in accordance with the Code is significantly broader than either the definition of “critically ill” or “serious medical condition” pursuant to the ESA.
In the experience of our Employment Law Team, small business owners do not always have access to complex legal advice in the area of human rights law. In our experience, small business owners are more likely to review, and seek guidance from the ESA in relation to their obligations to employees. We are concerned that creating a personal long-term illness leave with a higher threshold than the Code could potentially create legal and financial risk for employers. For example, if an employee has a disability, but is not “critically ill” and does not have a “serious medical condition”, when they take time off work due to their disability, an employer could terminate their employment, mistakenly believing that the employer is within their right to do so. That employee, following receipt of legal advice, would thein potentially file an application to the Human Rights Tribunal of Ontario seeking damages for breaches of the Code. This could be quite costly for the employer.
The Clinic’s Proposal for a Personal Long-Term Illness Leave under the ESA
The Clinic wishes to share its proposal for the level of impairment required in order for an employee to access the unpaid, personal long-term illness leave. The Clinic’s proposal, in brief is that the level of impairment required for an employee to access an unpaid personal long-term illness leave should simply match EI sickness benefits. For clarity, that proposal is that those who have received a medical certificate indicating that they are incapacitated and unable to work due to an illness or injury should be entitled to an unpaid job-protected leave lasting for the duration of their incapacity, up to a period of 27 weeks.
Currently, an employee is able to leave work and receive EI sickness benefits. However, because there is no ESA leave, their employment can be terminated by their employer, subject to an employer’s duty to accommodate a disability under the Code. That creates confusion, and complexity. An ESA leave provides certainty. We believe that there are good policy reasons for employees who have received a medical certificate indicating that they are incapacitated and unable to work not to have their employment terminated during the period in which they are off work due to illness, at least for the duration of their receipt of benefits under EI sickness benefits. Notably, EI is a mandatory employment insurance regime, to which all employees across Canada are required to contribute at source.
We propose that the personal long-term illness leave should be available to employees who have been actively employed by an employer for more than two weeks. In order to be eligible for EI sickness benefits, the employee would still need to have accumulated 600 hours of insurable employment in the previous 52 weeks. That would provide some degree of safeguard against employees who are truly unable to work being able to accumulate employment service without active employment.
We appreciate the Ministry’s consideration of our comments and suggestions.
Sincerely,
Don Valley Community Legal Services