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More time, more money: New, unique Employment Standards Act leaves proposed by legislature #learnthelatest

ontario-employment-law-conference-2016-blog-image-300x285There are currently two Bills before the Ontario legislature which would designate new leaves under the Employment Standards Act, 2000 (“ESA”). Outside of introducing the new leaves and obligations on employers, these Bills could be the canary in the coalmine for further extensive increases to leave entitlements under the ESA.

Bill 175, Jonathan’s Law (Employee Leave of Absence When Child Dies), 2016

The first new type of leave would be accessed by an employee with at least six months of service who suffers the death of a child under the age of 18. Such an employee would be entitled to a twelve month unpaid leave from the date of the death. This leave parallels the lengthy, relatively new leaves enacted in 2014 for employees who suffer the death or disappearance of a child due to crime.

While employers will have nothing but sympathy for employees who suffer the tragedy of losing a child, the imposition of protected leaves under the ESA will further burden employers. In particular, small employers may well be required to keep positions open for long periods of time, which can have a significant cost and operational impact. It is important to remember that there is no undue hardship analysis for leaves under the ESA.

When the crime-related leaves were introduced, few employers were likely to be impacted or concerned. However, should the new child death leave be enacted, its application will likely (and unfortunately) be more common.

Bill 177, Domestic and Sexual Violence Workplace Leave, Accommodation and Training Act, 2016

The Ontario government has been on a well-publicized campaign to prevent and address domestic and sexual violence. This goal is laudable.

As part of this broad initiative, the government has proposed a new leave that would allow a victim of sexual or domestic violence, or the parent of a victim, to take up to 10 days of leave per year with respect to various aspects of dealing with the violence. Unlike personal emergency leave, domestic and sexual violence workplace leave would be paid, and there is no requirement that an employer regularly employee at least 50 people before employees become eligible.

This type of leave would explicitly allow time off for various reasons related to the violence, including:

  • Seeking medical attention;
  • Obtaining services in respect of the violence;
  • Obtaining professional counselling;
  • Relocating to avoid the violence; and
  • Seeking legal or law enforcement assistance.

While again employers will likely be sympathetic to anyone suffering from such violence, the application of this new leave will likely be problematic for employers. For one thing, it puts the employer in the unenviable position of having to assess whether or not the grounds for taking the time off are “valid.” Given that the leave is paid, this inquiry may be more pressing for human resources and management personnel. Moreover, employers will understandably be reluctant to pry further into the affairs of someone who has accessed the leave, even if they are suspicious that the leave is being abused.

In addition, the section only requires that the employee provide evidence “reasonable in the circumstances” of meeting the requirements of the leave. That phrase is not defined, and it is not clear what evidence might be considered reasonable. That same phrase is used with respect to the evidence employers may demand when an employee takes personal emergency leave. But the application of that language in this context is more complex. For example, in the case of personal emergency leave it may be sufficient for the employee to prove they visited the doctor. In the case of sexual violence workplace leave, logically the employee must prove the visit related, at least in part, to the domestic or sexual violence suffered.

This is troubling because human resources professionals must pry into highly sensitive and confidential matters to do their jobs. But it is also notable that there is no requirement that the leave be taken with any proximity to the violence that occurred. Thus employers may be obliged to provide up to 10 paid days off each year to an employee for the balance of their employment, if any part of the medical or professional services they require at various times relate in any small way to violence that may have occurred years previous.  As such, to administer the leave requests over those years, human resources professionals must continue to pry into the employee’s private affairs.

Those who drafted the Bill have not addressed the implications to solicitor-client privilege arising out of the entitlement to take leave to seek “legal assistance”. To be eligible for the paid leave, the employee must provide the employer with proof, reasonable in the circumstances that she met with a lawyer to discuss issues related to domestic or sexual violence.  If the employee provides that evidence, she may have effectively waived solicitor-client privilege. This becomes even more troubling in the case of a work-related incident of domestic or sexual violence. One hopes the legislature will address this before the final Bill leaves committee.

It is important to note that, unlike personal emergency leave, there is no exception to the leave for smaller employers. This is problematic because smaller employers have far less of an ability to absorb unpredictable, let alone paid, time off of work. There is no undue hardship analysis in the draft Bill, so employers will be forced to do the best they can when an employee takes such a leave.

If passed, these amendments would also require that employers accommodate the needs of a victim or parent of a victim of domestic or sexual violence if they require modifications to their schedule. This obligation is subject to the undue hardship standard. Of course, the accommodation required in respect of such effects would likely already be protected by human rights legislation. Courts presume that laws are not redundant. So it remains to be seen what the difference is, if any, between accommodations required under this new language in the ESA and under the Ontario Human Rights Code. Perhaps the only difference is the requirement that the employee be paid for the leave. But that is not expressed in the draft legislation.

Conclusion

These proposed new leaves are still at an early stage, and may be revised before passage or eliminated from the agenda. But one thing is clear, the Ontario government has identified a number of perceived legislative gaps in employment-related statutes, and it intends to take swift action to propose and pass legislative amendments to fill them.  Employers would be well-advised to stay abreast of the relatively swift process and resulting amendments.

At the 17th annual Ontario Employment Law Conference, presented by Stringer LLP and First Reference Inc., employment lawyer Jeremy Schwartz will provide employers with guidance on changes to the Employment Standards Act, and how to deal with the Ministry of Labour’s new enforcement powers. The Ontario Employment Law Conference will take place at the Corporate Event Centre at CHSI in Mississauga on June 2, 2016. We look forward to seeing you and helping you apply the latest employment and labour law changes. Come and learn the latest!

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Stringer LLP

Employment and Labour lawyers at Stringer LLP
Stringer LLP is a leader in Canadian HR law. For over 45 years, they have taken a client-centered approach to responsive service, representing employers with labour relations and employment problems. Their firm’s practice covers a broad spectrum of HR law, including employment law, occupational health & safety, labour relations and arbitration, human rights, workers’ compensation and pay equity, as well as issues under the Accessibility for Ontarians with Disabilities Act. They also provide training, seminars and conferences on the above topics. Read more
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