As the COVID-19 pandemic drags into a third year and workers continue to face ongoing pressures both in the workplace and at home, many Ontarians are reporting “burnout” and are considering stress leave. The Government of Ontario has recently enacted novel changes to Ontario’s employment laws by introducing a “right to disconnect” from the workplace, and there are several provincial and federal programs in place which may provide some relief for employees.
What Is Stress Leave In Ontario?
Under Ontario’s Employment Standards Act, 2000 (the “ESA”), employees have the right to three (3) days of unpaid sick leave per calendar year, whether they are employed on a full or part-time basis and once they have completed two (2) weeks of service with their employer. This sick leave can also be used for employees wishing to pursue a “stress leave” because of workplace burnout, stress, or anxiety.
While pursuing the sick or stress leave, an employee’s job status is protected, and employers do not have the right to “reprise” (i.e., to retaliate) against the employee as a result of pursuing the leave. For example, it would be unlawful and a breach of the ESA to terminate an employee because of the employee’s decision to pursue a stress or sick leave.
During this time, employees may wish to apply for Employment Insurance Sickness Benefits (“EI Sickness Benefits”), whereby they may receive partial compensation for a period of up to fifteen (15) weeks while they are off sick.
What If You Need More Than 3 Days For Stress Leave?
For most employees, a three (3) day stress leave is insufficient time to tend to their mental health needs. Fortunately, the Ontario Human Rights Code (the “Code”) requires an employer to accommodate an employee’s disability up to the point of undue hardship, and they cannot discriminate against an employee as a result of their disability. As such, so long as an employee has legitimate medical documentation supporting their medical restrictions (such as a physician’s note to indicate the employee in question must be absent from work for a temporary period, or may only work on a limited basis), an employer is required to accommodate the employee’s restrictions and stress leave, up to the point of undue hardship.
If facing health challenges that may require a substantial stress/medical leave in excess of the fifteen (15) weeks of EI Sickness Benefits they may be entitled to, employees may wish to apply for Canada Pension Plan Disability Benefits (“CPP Disability”). This federal program may provide individuals with financial assistance for the duration of their disability, up to the age of sixty-five (65) years old.
Finally, if an employee can demonstrate that their mental health condition is directly correlated to workplace incident, they may be entitled to Workplace Safety Insurance Benefits (“WSIB”). While receiving WSIB benefits, employees’ job status is typically protected, and an employer cannot reprise against them for pursuing this benefit.
Enhanced Private Initiatives for Stress Leave in Ontario
There are several enhanced private benefits programs that employers may choose to provide to assist employees who are facing a strenuous health challenge.
- Short Term Disability (“STD”) Benefits are a private employment benefits program (typically provided by the employer directly, but sometimes administered by a private insurance company) which offers disabled employees partial financial assistance for a limited period of time while they are unable to work. STD Benefits are commonly limited to six (6) months of financial assistance, however, the eligibility period may vary depending upon the individual STD policy.
- Long Term Disability (“LTD”) Benefits are an enhanced private disability program employers may choose to provide (usually administered and provided directly by an external insurer), whereby a disabled employee may seek up to two (2) years of financial assistance, if they can successfully demonstrate they are unable to perform the duties and responsibilities pertaining to their specific position. After the initial two (2) year period, if their disability has worsened and rendered them unable to perform the duties and responsibilities of any position, then they may be entitled to LTD up to the age of sixty-five (65).
In both short term disability and long term disability matters, the financial assistance the employee may be entitled to will not 100% offset their salary, however, depending upon the specific policy in question, they may still be entitled to substantial monetary coverage.
Naturally, as these programs can be very expensive to administer, employers and insurers may sometimes dispute an employee’s eligibility STD/LTD. Therefore, for employees seeking STD or LTD while pursuing a stress leave, it is important to first seek support of a treating medical specialist (such as a psychiatrist) to unequivocally confirm the employee’s medical status. If the employee is denied STD or LTD despite possessing substantial supporting medical reports regarding their medical status, there may be grounds to commence litigation against the employer or their insurer in pursuance of damages in lieu of their STD/LTD Benefits.
It is important to note that if pursuing an extended leave of absence (typically in excess of four years), an employer is not required to guarantee the employee’s position will remain open in perpetuity, as they may be tantamount to “undue hardship” for employers.
What To Do If You Are Considering Stress Leave
Employees in Ontario should rest assured that they have a number of rights and entitlements in pursuing a stress leave as a result of a work-related mental health condition. That being said, it is important to seek out the assistance of a medical professional, in order to quantify your medical status and work-related restrictions. Once armed with this information, you should be comforted that you may be entitled to substantial monetary relief while recovering and seeking medical assistance.
If you are facing constructive dismissal or wrongful dismissal for taking days off due to illness, our experienced team of employment lawyers at Monkhouse Law can help. Contact us at 416-907-9249 or fill out this quick form, and we would be happy to assist.