What Is Considered “Reasonable in the Circumstances” for Proof of Personal Emergency Leave in Ontario?

In Ontario, personal emergency leave (PEL) has changed a lot since being introduced four years ago. If you’re finding it difficult to keep up, you’re not alone.

In 2018, Bill 148 introduced changes to personal leave in Ontario. This included two paid personal emergency leave days, with up to 10 days total being available. Later that year, with a new provincial government, the rules changed again. Employees were entitled to a total of 10 unpaid days.

In the wake of COVID-19 and the invocation of the Emergency Act in 2020, more employees were PEL. Now two years into the pandemic, with vaccine rollouts and the end of many public health measures, employers may also have questions about what counts as “reasonable in the circumstances” proof beyond the acute phase of the pandemic.

Thankfully there are answers to help you balance employer and employee rights as work situations and public health restrictions continue to change.

Qualifying Situations for Personal Emergency Leave

Bill 148 left intact most of the reasons an employee might take PEL. Common reasons include:

• Physical injury or illness
• The illness or injury of a family member, such as a parent, child, spouse, or sibling
• Caretaking for a family member in the event of illness or injury
• The death of a family member

In 2019, Bill 47 separated the 10 days of PEL into three separate types of leave. These are bereavement leave, family responsibility leave, and sick leave. These days are not prorated, and any employee may take them after working for a minimum of two weeks.

Declared Emergency Leave

In 2020, as the coronavirus crisis spread across the globe, Ontario enacted the Emergency Act. This introduced a new type of PEL: declared emergency leave.
This leave exists under Section 50.1 of the Employment Standards Act, 2000. The Act states that employers must give employees impacted by the declared emergency an unpaid, job-protected leave.
Within the context of COVID-19, employees would qualify if they were:

• Under medical investigation for COVID-19 infection
• Under supervision or treatment for COVID-19
• In isolation or quarantine in accordance with public health information or direction
• Acting in accordance with an order under the Health Protection and Promotion Act
• Providing care to a person for a reason related to COVID-19, such as providing care for a child whose school has been closed
• Unable to re-enter Ontario due to travel restrictions after leaving the province

Employees who need to care for family members, such as a spouse, sibling, or grandparent, can take infectious disease leave.

Employers can also ask employees not to come in, instead offering unpaid leave, in the event the employee may have been exposed to COVID-19.

These guidelines continue to stay in place in Ontario until July 31, 2022, or the end of the province’s “COVID-19 period.” Beginning in August 2022, employers should prepare for these changes:

• Employees will no longer be deemed to be on unpaid infectious disease emergency leave.
• Regular rules around constructive dismissal will resume. This means a significant reduction or elimination of an employee’s hours of work or wages may be considered a constructive dismissal under the ESA, even if the dismissal was for reasons related to COVID 19.
• Regular rules around temporary layoff will also resume. For practical purposes, an employee’s temporary layoff clock resets on July 31, 2022.

Although the COVID-19 period as defined by the Ontario Government is ending, an employee may still take unpaid (or, where applicable, paid) infectious disease emergencies. In other words, at the end of the COVID‑19 period, even though employees will no longer be deemed to be on unpaid infectious disease emergency leave, employees still have the right to take unpaid infectious disease emergency leave if they are not completing the demands of their role for certain reasons related to COVID 19. Paid infectious disease emergency will end on July 31, 2022.

What Counts as “Reasonable in the Circumstances” Proof?

When an employee notifies an employer they intend to use personal emergency leave, employers may ask for proof of need for the leave. In the case of bereavement, for example, this could include a copy of an obituary or death certificate. Other “reasonable in the circumstances” proof may include:

• A note from a pharmacy, showing a prescription
• An employer-mandated form for emergency leave

In 2018, Bill 148 had eliminated employers’ ability to ask for medical notes to prove sick leave. This was reversed in 2019 with Bill 47.

In connection with infectious disease leave and declared emergency leave, employers can still ask for reasonable proof. If an employee says they have been impacted by travel restrictions, for example, you might ask to see proof of a canceled flight. An employee who needs to look after their children may be asked to present a note stating that the school or daycare has been closed due to the Emergency Act.

Employers cannot ask for medical notes to support an employee’s request for emergency leave due to COVID-19 even beyond the special COVID-19 period. Employees must still request the time off, so you may be informed that they have tested positive or are under investigation. Requesting medical proof at this time will place additional burdens on the healthcare system that continues to be challenged. It could also discourage sick employees who cannot receive a test from staying home and preventing the spread.

Employers may also wish to use discretion when requesting proof for bereavement leave. The Government of Ontario recommends asking not only for “reasonable in circumstances” proof, but also asking for that proof when it is reasonable given the circumstances.

Navigate a Shifting Landscape with Confidence

As Ontarians move to flatten the curve and eventually shift to the post-pandemic world, the landscape around personal emergency is changing once again in 2022, and likely not for the last time. It makes sense for employers like you to consult with workforce solutions experts. With the right advice, you’ll be ready to adapt to an always-changing employment landscape.