As we have been warning dentists for several months now, employment law has changed as of January 1, 2018. A good chunk of the new changes to the Employment Standards Act (ESA) (called Bill 148) came into effect on New Year’s Day–and a big part of that for Dentists in Ontario is the extention of Personal Emergency Leave (PEL) to all employees in Ontario. DMC has prepared a detailed guide on how Bill 148 affects Dentists, click here for more.
Article Summary: Whether Dentists like it or not, every employee in Ontario now gets 2 paid sick days and 8 unpaid sick days.
PEL (basically paid sick days) is now a reality in Ontario for Dentists – and this article will tell you how to navigate it.
What Is a “Personal Emergency”?
Very few dentists (if any) in Ontario had to provide this type of leave to their employees before 2018, so the definition of what is a personal emergency is not well known in our industry.
Personal Emergency Leave is essentially sick leave and bereavement leave. It is defined in the ESA as follows:
- a personal illness, injury or medical emergency
- death, illness, injury, medical emergency or urgent matter relating to the following family members:
- a spouse (includes both married and unmarried couples, of the same or opposite genders);
- a parent, step-parent, foster parent, child, step-child, foster child, grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse;
- a spouse of the employee’s child;
- a brother or sister of the employee; or
- a relative of the employee who is dependent on the employee for care or assistance;
- an urgent matter that concerns any of the above listed family members
An employee can take PEL for illnesses, injuries and medical emergencies for themselves or a specified family member (or for an “urgent event” related to those family members), regardless of how the emergency came about. For example, the Ministry of Labour advises that employees are entitled to take the leave for pre-planned surgery if it is for an illness or injury, even though it is scheduled ahead of time and not “urgent” or an “emergency.” At the same time, the Ministry of Labour has said that employees cannot take PEL for cosmetic surgery that isn’t medically necessary or is unrelated to an illness or injury.
Other conditions of PEL
Now, some quick fire things you need to know about PEL:
- All employees are entitled to ten (10) days of Personal Emergency Leave.
- The first two (2) of those days in a calendar year are paid (subject to any discipline, as discussed below)
- Employees need only be employed for over 1 week before becoming entitled to receive the 2 paid days off. If a PEL day is required in the first week of employment, it is taken from the eight unpaid days the employee has available to them.
- The PEL is not pro-rated in a year. Each year, each employee receives 10 days of PEL. Even if they are hired on December 1, they could (theoretically) take 10 days of PEL between December 1 and December 31.
- An employee must give notice of their intention to take PEL before it is taken, or as soon as they are able to give notice they are taking it.
- Part days of PEL are permitted, and the employer is permitted in counting the half day of PEL as a full day of PEL (but of course, always pay an employee for whenever they work)
- If a PEL day falls on a public holiday or a day when the employee would be entitled to overtime or a shift premium, the employee will not be entitled to public holiday pay / overtime pay / shift premium for the day of leave.
- Dental Hygienists are specifically not entitled to PEL where taking the leave would be professional misconduct or abandoning their duties.
What Is “Urgent”?
Now, I’m sure you read that definition above and asked yourself: “what is an ‘urgent matter.’”
Well, an urgent matter is “an event that is unplanned or out of the employee’s control, and can cause serious negative consequences, including emotional harm, if not responded to” according to the Ministry of Labour.
The Ministry goes on to give some examples of what is urgent:
- a babysitter calls in sick,
- an employee’s parent’s house is broken into and the parent is upset,
- an employee’s child has a meeting with a counsellor to discuss behavioural issues at school, and the meeting could not be scheduled outside working hours.
The Ministry has also said what is not urgent:
- an employee wants to watch their child’s soccer game,
- an employee is attending a sister’s wedding as part of the wedding party.
Since this is a Sick Day, can’t I ask for a Doctor’s Note?
The answer: No.
The new law specifically states that an employer cannot request a medical note from an employee taking personal emergency leave. But, an employer can request “evidence that is reasonable in the circumstances.”
Evidence that is “reasonable in the circumstances” will vary from situation to situation and will be based on various factors (the duration of the leave, whether there is a pattern of absences, whether any evidence is available and the cost of the reasonable evidence).
While there is a prohibition on employers requesting a doctor’s note, there is no prohibition on employees voluntarily providing a doctor’s note for their absence. If that is evidence that is reasonable in the circumstances, then it probably should be provided (if it is reasonable to do so). As we have mentioned before, any doctor’s note should only contain details of the prognosis and job limitations (and not diagnosis or personal private details).
The evidence should be reasonable, so you may not need a doctor’s note to understand that someone broke their leg when they walk back into work with a cast on their leg. A photo of a flooded basement may be reasonable. A photo or police report of their car accident may be reasonable. You may even find that a written statement is reasonable in the circumstances. The law has left it up to employers and employees to determine what is reasonable.
Nevertheless, employers still retain their management rights to run their business as they see fit (without discrimination of course). If an employee has abused the personal emergency leave system or has not provided evidence that is reasonable in the circumstances, dentists should document the entire interaction, choose whether to give paid or unpaid leave, and consider whether to discipline the employee.
As well, short term and long term sick leave are still available for use by employees: the law did not do away with those. The interaction between sick leave and personal emergency leave may not always be straight forward however.
DMC has prepared a special PEL Policy and Form for dental offices that assist employees and employers on using the new leave of absence. Contact us to find out more.