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Q&A: Pro-rating personal emergency leave benefit for contract employees

personal emergency leave benefitIn this conference Q&A, we address the application of personal emergency leave for contract employees.

In partnership with Stringer LLP, First Reference Inc. recently hosted the 19th Annual Employment Law Conference on June 12, 2018, where we discussed the latest legal developments including issues surrounding personal emergency leave under the Employment Standards Act.

We received a large number of questions from conference attendees during the Q&A session. Though we could not answer them all during the conference, the First Reference Blog will be updated weekly to provide further clarity on this year’s hot topics based on the questions we received.

Q:

If you have a contract employee and our company has 10 paid PEL days, would those days be pro-rated for a contract employee who is on a six month contract?

A:

Employees covered by the ESA are generally entitled to take personal emergency leave, whether they work full time, part time, or are on contract. To clarify, on contract here means a dependent contractor on your payroll and not an independent contractor.

As an employee or a dependent contractor, he or she has clear protections and rights under the Ontario Employment Standards Act (ESA). As a true “independent” contractor he or she operate like a business and therefore is not covered under the ESA.

The Ontario Employment Standards Act for the most part, does not distinguish between part-time, full-time, temporary or permanent employees, casual or contract employees.

Eligible employees including contract employees have the right to take up to 10 days of job-protected leave each calendar year. The first two days of the leave in each calendar year are paid if the employee has been employed for one week or longer. The rest is unpaid.

Employees are entitled to personal emergency leave as soon as they start working for an employer. However, in order to be entitled to paid leave they must be employed for a minimum of one week.

Employees are entitled to the 10 days of personal emergency leave within each calendar year no matter when they started working for the employer or how long they have or will be working for you except that a new employee employed for less than a week is only entitled to unpaid days of leave.

There is no mechanism in the ESA for pro-rating that entitlement. There is no pro-rating of the 10-day entitlement even if you provide a greater benefit (10 paid days instead of the two paid days and 8 unpaid days). An employee who begins work partway through a calendar year is still entitled to 10 days of leave for the rest of that year. Moreover, the entitlement applies to all employees, including full-time, part-time, permanent and contract employees.

Consult The Human Resources Advisor Ontario edition for a more in-depth discussion on compliance and best practices on the topic of personal emergency leave.

Please Note: This article is prepared for information purposes only; it is not legal advice. Consult a lawyer before acting on it or to obtain legal advice or a legal opinion.

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Yosie Saint-Cyr, LL.B. Managing Editor

Managing Editor at First Reference Inc.
Yosie Saint-Cyr, LL.B., is a trained lawyer called to the Quebec bar in 1988 and is still a member in good standing. She practiced business, employment and labour law until 1999. For over 18 years, Yosie has been the Managing Editor of the following publications, Human Resources Advisor, Human Resources PolicyPro, HRinfodesk and Accessibility Standards PolicyPro from First Reference. Yosie is one of Canada’s best known and most respected HR authors, with an extensive background in employment and labour across the country. Read more
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One thought on “Q&A: Pro-rating personal emergency leave benefit for contract employees
  • Glenn Woods says:

    Would it be possible for an employer to provide the 10 days PEL per calendar year as required by the ESA, while allowing employees to receive credits or be eligible to convert the unpaid days to paid days depending on the length of service. For example, an employee is immediately eligible for 10 days of PEL per calendar year, 2 of which will be paid. Additional paid PEL will be accrued at a rate of 1 date per month of service to a maximum of 8 paid days per calendar year.

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