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Questions about Personal Emergency Leave

On this page:

  1. What is personal emergency leave?
  2. How much personal emergency leave do employees get?
  3. How long does an employee have to work for an employer before becoming eligible to take personal emergency leave?
  4. Can unused days of personal emergency leave be carried forward into other calendar years?
  5. If a new employee starts halfway through the year, does the employee get fewer personal emergency leave days?
  6. If an employee takes only a few hours within a working day of personal emergency leave, can the employer count it as a whole day of leave?
  7. Can all employees take personal emergency leave?
  8. Does it matter how many employees work for the employer?
  9. Does it matter if the employee caused their own injury or illness?
  10. Would an employee be able to take personal emergency leave for cosmetic surgery?
  11. Could an employee take personal emergency leave to attend an annual medical or dental check-up appointment?
  12. What family members can an employee take personal emergency leave for?
  13. Does an employee need to tell their employer if they are taking the leave?
  14. If the employee doesn’t tell the employer they are taking the leave, is the employee still allowed to take the leave?
  15. How is the new provision different from the existing provisions in the ESA?
  16. How much personal emergency leave pay do employees get?
  17. Do employees have to be paid personal emergency leave pay for the whole day, even if they only took an hour or two as leave?
  18. What does “the wages the employee would have earned if they had not taken the leave” mean?
  19. What are the rules for employees paid by commission, or an hourly rate plus commission, or by piecework?
  20. If an employee was working overtime or was scheduled to work overtime when they took the leave, do they still get it even if they didn’t actually work?
  21. If an employee was entitled to a shift premium at the time they took the leave, would that be included in personal emergency leave pay?
  22. If an employee takes personal emergency leave on a public holiday they were scheduled to work, do they get the premium pay they might have been entitled to if they actually worked?
  23. What if an employment contract already provides for paid sick or bereavement leave?
  24. Can an employer ask for proof that an employee is allowed to take the leave?
  25. What type of evidence is considered “reasonable in the circumstances?”
  26. Are there special rules for auto workers (workers in defined industries per O.Reg. 502/06)?
  27. Are there special rules for construction workers?

What is personal emergency leave?

personal emergency leave is a job-protected leave that employees can take to deal with illness, injury or a medical emergency relating to the employee, or the illness, injury, medical emergency, death or urgent matter of particular family members.

How much personal emergency leave do employees get?

Eligible employees have the right to take up to 10 days of job-protected leave each calendar year. The first two days of the leave in each calendar year are paid if the employee has been employed for one week or longer. The rest is unpaid.

How long does an employee have to work for an employer before becoming eligible to take personal emergency leave?

Employees are entitled to personal emergency leave as soon as they start working for an employer. However, in order to be entitled to paid leave they must be employed for a minimum of one week.

Can unused days of personal emergency leave be carried forward into other calendar years?

No. Employees are entitled to a maximum of 10 days of personal emergency leave within each calendar year.

If a new employee starts halfway through the year, does the employee get fewer personal emergency leave days?

No. Employees are entitled to 10 days of personal emergency leave within each calendar year no matter when they started working for the employer. However, a new employee employed for less than a week is only entitled to unpaid days of leave. Once an employee is employed for an employer for one week or longer, the employee is entitled to two paid days of leave and any unpaid days of leave that the employee has already taken in the calendar year is to be counted against the employee’s 10-day entitlement.

If an employee takes only a few hours within a working day of personal emergency leave, can the employer count it as a whole day of leave?

Yes.

Can all employees take personal emergency leave?

Employees covered by the ESA are generally entitled to take personal emergency leave, whether they work full time, part time, or are on contract. However, there are some employees with special rules. For example, employees who work in automobile or automobile parts manufacturing have special rules. Some professional employees cannot take personal emergency leave if taking personal emergency leave would constitute an act of professional misconduct or a dereliction of professional duty (e.g. if patients would be harmed if their doctor took personal emergency leave). Construction employees are not entitled to receive personal emergency leave pay if they are paid 0.8 per cent or more of their hourly rate or wages for personal emergency pay. See the special rule tool for details.

Does it matter how many employees work for the employer?

No. Employees are eligible to take personal emergency leave no matter how many employees work for the employer. Prior to January 1, 2018, employees were entitled to personal emergency leave only if their employer regularly employed 50 or more employees.

Does it matter if the employee caused their own injury or illness?

No. The employee would still be entitled to take the leave if the employee did something careless or risky and was injured as a result

Would an employee be able to take personal emergency leave for cosmetic surgery?

It depends. personal emergency leave is to be taken for illness, injury or a medical emergency. If the employee needed to have cosmetic surgery or dental work done as a result of an  injury, leave could be taken for this purpose.

Could an employee take personal emergency leave to attend an annual medical or dental check-up appointment?

It depends. An appointment for an annual check-up would generally not trigger   an entitlement to personal emergency leave unless it has been scheduled in respect of an illness, injury or medical emergency. However, if an employee had regularly scheduled appointments for the treatment or management of a chronic medical condition such as Crohn's disease or diabetes, those appointments would trigger an entitlement because they are absences related to an illness.

What family members can an employee take personal emergency leave for?

personal emergency leave is available for these family members:

  • a spouse (either married or common law, opposite or same sex)
  • 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
  • the spouse of the employee's child
  • a brother or sister of the employee
  • a relative of the employee who is dependent on the employee for care or assistance

“A relative of the employee who is dependent on the employee for care or assistance” means someone who is related to the employee by blood, marriage, adoption or through a common-law relationship and who the employee helps or provides care for. The employee does not have to live with the relative.

Does an employee need to tell their employer if they are taking the leave?

Yes. The employee needs to let the employer know before they start the leave (or, if this is not feasible, as soon as possible after starting the leave). It doesn’t have to be in writing.

If the employee doesn’t tell the employer they are taking the leave, is the employee still allowed to take the leave?

Yes, if the employee meets all the requirements for the leave (e.g. the employee takes the leave for a personal illness or because of an urgent matter of a specified relative).

How is the new provision different from the existing provisions in the ESA?

Previously, only employees who worked for an employer that regularly employed at least 50 employees were eligible to take personal emergency leave. Personal emergency leave time was entirely unpaid, and employers were entitled to request evidence “reasonable in the circumstances” that the employee was entitled to take a leave, which could include a medical note or certificate.

How much personal emergency leave pay do employees get?

For the two paid PEL days, an employee is generally entitled to be paid their regular rate of pay for any leave taken.

If the employee is paid fully or partly by a performance-related method (like commission only, commission plus salary, commission plus hourly rate, or piece work) then they must be paid the greater of their hourly rate (if they have one) or the minimum wage rate that applies to them  for the time  they missed because they were on personal emergency leave.

If the employee missed only part of a day to take the leave, the employee would be entitled to be paid any wages they actually earned during the time they were at work in addition to personal emergency leave pay.

Do employees have to be paid personal emergency leave pay for the whole day, even if they only took an hour or two as leave?

No. personal emergency leave pay only covers the time that the employee missed because they were on leave. If an employee missed one hour of work, that employee would be entitled to one hour of personal emergency leave pay and the pay they earned for the hours they worked.

What does “the wages the employee would have earned if they had not taken the leave” mean?

For hourly rate employees, this would be the number of hours the employee was on leave multiplied by their regular hourly rate.

For salaried employees, this would be either what an employee is paid for a day if the employee took an entire day of leave, or what the employee is paid for an hour of work. In effect, the employee’s salary is continued during the time the employee took paid personal emergency leave.

What are the rules for employees paid by commission, or an hourly rate plus commission, or by piecework?

If the employee has an hourly rate as part of their employment contract, the employee should be paid that hourly rate for every hour of work the employee missed because they took personal emergency leave, so long as that rate is at least as much as the applicable minimum wage rate. If the hourly rate is less than the applicable minimum wage rate, then the employee is entitled to the applicable minimum wage rate for time missed because of personal emergency leave. If the employee has no hourly rate (for example, is paid by commission only, or piece work) then the employee must be paid the applicable minimum wage for all hours spent on personal emergency leave.

If an employee was working overtime or was scheduled to work overtime when they took the leave, do they still get it even if they didn’t actually work?

If the employee was scheduled to work overtime and missed all or part of the working day, the employee is entitled to be paid wages they would have earned during the day or shift at their regular rate, but not at the overtime rate of 1.5 x regular rate.

For example, if an employee is paid $16./hour and missed an entire eight-hour shift to take the leave, and four of those hours would have been over the 44-hour overtime threshold, personal emergency leave pay for that employee would be “straight time” only, or 8 x $16 ($128).

If an employee was entitled to a shift premium at the time they took the leave, would that be included in personal emergency leave pay?

No. If the employee was scheduled to work a shift that attracts a shift premium, the employee is not entitled to be paid the shift premium. For example, if an employee is paid $16/hour + $2.50/hour for night shifts and missed an entire eight-hour night shift to take the leave, personal emergency leave pay for that employee would be 8 x $16 (not 8 x $18.50).

If an employee takes personal emergency leave on a public holiday they were scheduled to work, do they get the premium pay they might have been entitled to if they actually worked?

In some circumstances, an employee may agree to work or be required to work on a public holiday. One of the possible outcomes of that arrangement is that the employee would be entitled to “premium pay” (1.5 x the employee’s regular rate) for all hours worked on the public holiday, plus public holiday pay.

If an employee with that entitlement does not work some or all of the hours they were scheduled to on a public holiday because they took paid personal emergency leave, when calculating personal emergency leave pay the employee would not receive premium pay for the hours of leave taken. They would be entitled to public holiday pay only.

What if an employment contract already provides for paid sick or bereavement leave?

If an employment contract, including a collective agreement – provides a greater right or benefit than the personal emergency leave standard under the ESA, then the terms of the contract apply instead of the standard. If the contract does not provide a greater right or benefit, then the personal emergency leave standard in the ESA applies to the employee.

For more information, please see the Personal Emergency Leave chapter in Your Guide to the Employment Standards Act, 2000.

Can an employer ask for proof that an employee is allowed to take the leave?

Yes, but the employer cannot require that the employee provide a note from a “qualified health practitioner,” which includes a medical doctor, nurse or psychologist. An employee can provide medical notes if they want to, and an employer can require a note from a practitioner who is not a medical doctor, nurse or psychologist, like a dentist or a chiropractor if this type of evidence would be “reasonable in the circumstances.”

An employer can also ask for other documents if it is “reasonable in the circumstances,” for example, a police report or invoice from an auto repair shop if the employee took the leave because they were in a car accident.

What type of evidence is considered “reasonable in the circumstances?”

While employers cannot require employees to provide a note from a physician, registered nurse or psychologist, they can require a note from other types of health practitioners, for example, a dentist, physiotherapist, Chinese medicine practitioner, naturopath or registered massage therapist, if it is “reasonable in the circumstances.” An employee can provide a medical note voluntarily.

An employer can also ask for other evidence if it is “reasonable in the circumstances, for example, a police report or invoice from an auto repair shop if the employee took the leave because they were injured in a car accident.

The prohibition in the ESA against requiring a note from a physician, registered nurse or psychologist applies only with respect to providing evidence that the employee is entitled to personal emergency leave. There may be some situations outside of the scope of personal emergency leave where an employer may need medical documentation in order to, for example, accommodate an employee, satisfy return to work obligations. The ESA does not prohibit employers from requiring a note for these sorts of other purposes.

Are there special rules for auto workers (workers in defined industries per O.Reg. 502/06)?

Yes. If an employee within the defined industries (auto manufacturing, auto parts manufacturing and/or warehousing, auto marshalling) is given at least two days of vacation or holiday in excess of the requirements of the ESA, or days for personal illness or medical appointments per calendar year, then the employee will not be entitled to personal emergency leave pay. The employee will, however, still be entitled to unpaid personal emergency leave.

For the special rule to apply, the “extra” vacation, holiday or personal illness days must be paid. The employee must be paid no less than his or her regular wages for the pay period before the day divided by the number of days actually worked.

If the employee does not receive these extra days in his or her employment contract, the regular personal emergency leave rules apply.

Are there special rules for construction workers?

Construction employees as defined in s. 1 of O.Reg. 285/01 will be exempt from the personal emergency leave pay provision if they receive at least an additional 0.8 per cent pay in each pay period.

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