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January 2019 - Changes to personal emergency days.

Today in Ontario workers get 10 personal emergency leave days a year. Two of them are paid, the other eight are not. Employers are not permitted to ask for a doctor’s note to justify any of the first ten days of absence in any calendar year.

The new provincial government will be changing all that. Effective January 1, 2019, there will be no paid days. You can take three days for personal illness, three for family responsibilities and two for bereavement leave.
Realistically, many employers will not be tracking which of the eight days is used for which reason. Since the days are unpaid taking them off comes with their own consequences…less money. While some employers have the resources and sophistication to track the particulars of the leave usage, many will only pay attention for those employees who persistently miss a lot of work.

The new legislation allows employers to require a doctor’s note to justify any of the three personal illness days. The medical profession is, justifiably, extremely concerned. First of all, their advice if you’ve got a cold or flu is to stay home and get better not come and see the doctor and spread your germs around the waiting room and staff. That is the advice public health officials have long given and which the legislation ignores. Doctors routinely charge for medical notes and the legislation is silent as to who pays for that note. So the employee not only misses a day’s pay but has to pay the doctor to write the note. In a province where so many people cannot find a family doctor the waiting rooms will become even more crowded.

There are some things this legislation does not change. Many employers provide sick pay as one of their employee benefits. It could be five days, ten days, and I have seen up to six months. Employers can still require a doctor’s note before it pays out the sick pay. There is no law requiring the sick pay, even for two days after January 1, 2019, and the employer can put conditions on the benefit. Basically the employer can say, “I will not discipline you for taking the first three sick days per calendar year but I will not pay you unless you provide a note.”

Then there is the Human Rights Code. An employer has an obligation to accommodate an absence due to illness to the point of undue hardship but, after that first three days, it can require medical documentation establishing that you are not well enough to attend at work. It cannot ask for a diagnosis or in any pry into your private circumstances. It can ask for confirmation that you are medically unfit to work, any possible predication as to when you will return and any accommodation or modification that will facilitate that return. Again, there is no real law about who pays for the note but many employers offer to pay for the note rather than be faced with no note and a claim that the employee cannot afford to get one.

My experience has been that these kind of changes affect the lowest paid workers in our province most. People making $800 a week or more ($20 an hour at 40 hours) tend to have medical benefits, some sick pay, and an increased loyalty to their employer. Certainly there are always abusers but the higher paid workers tend to be better when it comes to work attendance. It is those working for minimum wage or just above that amount where turnover of employees is high, constantly seeking a better opportunity that tend to be less concerned with the boss’s perception of them. No matter what they do they will never make much money in the job and that, as per their hourly rate, they are not particularly valued. The employer reaps what they sow. For those people, things will be getting a little tougher on January 1st.
Ed Canning
Ed Canning
P: 905.572.5809