What is Stress Leave?
Stress leave is available to an employee under a “Sick Leave”. Sick leave, under Ontario’s Employment Standards Act (ESA), sets out the minimum requirements for sick leave and answers questions such as:
- Are you entitled to sick leave?
- How many days am I allowed?
- What do my reasons have to be?
- Do I need to give notice?
- Do I need a medical note?
It is important to note that an individual’s employment contract can answer these questions, as well as set out more entitlements than the ESA provides. For example, your contract may give you more days for sick leave or a procedure for giving notice prior to sick leave.
If your employment contract or collective agreement provides a greater right or benefit, then the terms of your contract will apply instead of the ESA. For example, if your contract allows for 5 days of sick leave, you will be entitled to those 5 days and not the minimum 3 days stated in the ESA. The employment contract may also give separate days for “stress leave”, but if not, stress leave can be included under sick leave, family responsibility leave, and leave for bereavement.
To better understand what benefits your employment contract has or what you are entitled to, you should consult us.
Am I Entitled to Sick Leave?
An employee who has been employed for at least two consecutive weeks is entitled to a leave of absence without pay because of a personal illness, injury or medical emergency.
How many days am I allowed?
The entitlement for sick leave is capped at a total of three days in each calendar year. If an employee takes a portion or part of one day for sick leave, the employer can deem it to be a full day taken under the leave.
If your employment contract allows for one paid sick day, it will amount to one unpaid sick leave under the ESA. That would leave the employee with two additional unpaid sick leave days in the year, but not additional paid sick days under his or her contract.
An employee is not able to carry over unused sick days to the next calendar year.
What do my reasons have to be?
An employee can take a sick leave for an illness, injury or medical emergency for himself or herself. It does not matter what caused the illness or injury (e.g. it can even be from your own recklessness). If the employer does not allow you to exercise your entitlement to take sick leave, you should contact us.
Do I need to give notice?
If an employee wishes to take sick leave, they should advise their employer that you will be doing so. If the employee must leave before being able to advise their employer, the employee should advise their employer as soon as possible before beginning the leave.
Notice is not required in writing and therefore oral notice for the leave is sufficient.
If the employer has a policy on notice, and the employee is unable to give the required notice stipulated in that policy, the employee will not lose the right to take their entitled leave.
Do I need a medical note?
An employer may ask an employee who decides to take sick leave to provide evidence “reasonable” in the circumstances.
What may be reasonable will depend upon the facts of your specific situation, such as:
- How long you will be away;
- How many other absences you have; and
- What is common in the workplace.
Therefore, it may be reasonable in your circumstances to provide a medical note.
If an employer does require a medical note from a health practitioner, the employer may only ask for the following information:
- The duration of the absence;
- Date the employee was seen by a health care professional;
- Whether the patient was examined in person by the health care professional who wrote the note.
This means an employer cannot ask an employee for information about the diagnosis or treatment of an employee’s medical condition.
The purpose of the note is for the doctor to certify the employee cannot work because of a medical condition. If the medical condition is a disability, the employee is protected under the Ontario Human Rights Code and must be accommodated by the employer. This is known as the “duty to accommodate”.
What is the Duty to Accommodate?
The employer has a duty to remove barriers which prevent employees from doing their job. For example, an employer may have to change the way it provides a workspace or make minor changes to an individual’s job, so they are able to do it effectively.
When an individual suffers a disability such as an injury, illness or addiction that prevents the employee from doing his or her job in the same manner before the disability, the employer is legally not allowed to terminate the employee’s employment without first trying to accommodate the disability.
Some examples of reasonable accommodation are:
- Flexibility in working times
- Job restructuring
- Retraining
- Assignment to an alternative position
- Accessible wheelchair ramps or entryways
How Much Does My Employer Have to Do?
The duty to accommodate under the Ontario Human Rights Code states an employer must find a way to accommodate the needs of the affected employer to the point of “undue hardship”. That means, the employer must take all measures to accommodate up until the point where the accommodation would create health or safety risks. An added expense is not undue hardship. In contrast, if an employee is blind, he can no longer be a pilot without affecting the safety of others. That would be considered undue hardship.
If your employer has not tried to accommodate your disability and you have been wrongfully terminated, it is critical to call us right away.
How do I get Stress Leave in Ontario?
The first step in getting stress leave is to read what your employment contract stipulates. For example, are there specific days for stress leave? If not, how many days are you entitled to under sick leave?
If there are no specific provisions about sick leave, you are automatically entitled to three days under the ESA if you have worked for that employer for two consecutive weeks.
If you are unsure about what your employment contract says or are confused by its terms, you should speak to your supervisor or dedicated human resources manager, or call us.
What are the Grounds for Stress Leave?
As stress leave is not a separate leave under the ESA, the grounds for stress leave would be the grounds for sick leave. The grounds for a sick leave would be an illness, injury, or medical emergency for yourself.
Stress leave might also be availed under family responsibility leave or leave for bereavement. Both leaves are explained below.
Is there a Mental Health Leave in Ontario?
A leave associated with mental health would fall under the category of “sick leave” in Ontario.
Other Leaves Related to Stress Leave
Other leaves that can be taken associated with stress are a family responsibility leave and a leave for bereavement. Both are unpaid, although an individual employment contract may give paid leaves for these categories.
Family Responsibility Leave
An employee who has been employed for at least two consecutive weeks is entitled to a total of three days’ leave of absence, without pay, for an illness, injury or medical emergency for the following individuals:
- Your spouse
- A parent, stepparent or foster parent for yourself or your spouse
- A child, stepchild or foster child for yourself or your spouse
- Your child’s spouse
- A grandparent, step-grandparent, grandchild or step-grandchild for yourself or your spouse
- Your brother or sister
- A relative who is dependent on your care or assistance
Leave for Bereavement
An employee who has been employed for at least two consecutive weeks is entitled to a total of two days’ leave of absence, without pay, because of the death of any of the following individuals:
- Your spouse
- A parent, stepparent or foster parent for yourself or your spouse
- A child, stepchild or foster child for yourself or your spouse
- Your child’s spouse
- A grandparent, step-grandparent, grandchild or step-grandchild for yourself or your spouse
- Your brother or sister
- A relative who is dependent on your care or assistance
If your employer refuses to grant you medical leave, family responsibility leave, bereavement leave, stress leave, or retaliates against you for requesting them, you should contact us immediately. They might be liable for constructive dismissal, violations of the Employment Standards Act, the Human Rights Code, and the Ontario Occupational Health and Safety Act.
