Is An Ontario Employee Entitled to Bereavement Leave?
Is an employee entitled to bereavement leave in Ontario? What happens if a family member has not died but is very ill, can the employee take a leave? How much time is the employee entitled to?
As surprising as it seems, there is no statutory right in Ontario to paid bereavement leave. If your employer is large, you may be entitled to time off. The Employment Standards Act states:
50 (1) An employee whose employer regularly employs 50 or more employees is entitled to a leave of absence without pay because of any of the following:
1. A personal illness, injury or medical emergency.
2. The death, illness, injury or medical emergency of an individual described in subsection (2).
3. An urgent matter that concerns an individual described in subsection (2).
(2) Paragraphs 2 and 3 of subsection (1) apply with respect to the following individuals:
1. The employee’s spouse.
2. A parent, step-parent or foster parent of the employee or the employee’s spouse.
3. A child, step-child or foster child of the employee or the employee’s spouse.
4. A grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee’s spouse.
5. The spouse of a child of the employee.
6. The employee’s brother or sister.
7. A relative of the employee who is dependent on the employee for care or assistance.
3) An employee who wishes to take leave under this section shall advise his or her employer that he or she will be doing so.
(4) If the employee must begin the leave before advising the employer, the employee shall advise the employer of the leave as soon as possible after beginning it.
(5) An employee is entitled to take a total of 10 days’ leave under this section in each calendar year.
(6) If an employee takes any part of a day as leave under this section, the employer may deem the employee to have taken one day’s leave on that day for the purposes of subsection (5).
(7) An employer may require an employee who takes leave under this section to provide evidence reasonable in the circumstances that the employee is entitled to the leave.
The Employment Standards Act allows the employer to require "evidence reasonable in the circumstances." before leave is given. What type of evidence is sufficient. In 2012, an arbitration under the Labour Relations Act looked at that question when evaluating whether an employee was allowed a leave to visit a terminally ill parent. The arbitrator noted that it could be difficult to provide medical documents for a third party (parent) since the person's consent would be required to release the private information. The arbitrator stated:
27] Determining what is “reasonable in the circumstances” requires a balancing of the rights and the interests of both the employee and the employer. The employee has a statutory right to the emergency leave. The employer has the right to operate its business in a productive manner. Both the employee and the employer must comply with the Act, and have an interest in working together harmoniously to ensure that the emergency leave provisions are used properly and productively. Ideally, employees and employers will work cooperatively to ensure that this goal is achieved. Achieving this goal is optimized when the employee provides the best evidence that is reasonably available to establish that he is entitled to a personal emergency leave.
[28] The evidence requested should also bear proportionality to the emergency leave. For example, if the emergency leave is for only one day, and there are no other extenuating circumstances, the employee’s own statement may be sufficient, and it may not be reasonable to require an employee to incur the time and expense of obtaining other evidence, such as a medical certificate, to verify his mother’s illness. However, where there are grounds to question the legitimacy of the request, it may be reasonable to require evidence greater than the employee’s own statement.
[30] Where there are grounds to question the legitimacy of the request, and it is reasonable under the circumstances for the employer to request and the employee to obtain a medical note, an employer may request a medical note from the employee to verify the mother’s illness. If the mother will provide her consent for the release of this information, it will be the best evidence to verify the entitlement to the emergency leave. It is in the best interests of the parties, and it promotes good labour relations, to verify the illness in this manner, if it is reasonably possibly to do so. The employer is not entitled to a detailed medical certificate, stating the diagnosis or treatment plan, but rather may only request a note verifying the mother’s illness.
[31] However, if the mother will not provide her consent for the release of this information, or if on the facts of the case it is not “reasonable in the circumstances”, or it is disproportionate to request such a medical note, the employer will have to consider what other evidence is “reasonable in the circumstances”. .... In some cases there may be no other better and available evidence than the employee providing his own statement or attestation confirming that his mother was ill.
[32] It is in the best interests of the employer to act as reasonably as possible in determining what evidence it believes is “reasonable in the circumstances”, and for the employee to act as reasonably as possible to provide the best evidence he can provide, to establish that he is entitled to a personal emergency leave due to his mother’s illness. Ultimately, whether the employer is requesting evidence that exceeds “evidence reasonable in the circumstances”, or whether the employee is failing to provide evidence that is “reasonable in the circumstances”, is a question of fact and law that will have to be decided, if the parties cannot resolve the issue themselves, by an adjudicator.
In considering what evidence is “reasonable in the circumstances”, the following factors can be considered:
the duration of the leave;
whether there is a questionable pattern of absences or absenteeism;
whether medical evidence is available; whether it is difficult or costly to obtain the evidence, and;
whether there are reasons to question the truthfulness for the request.
The Lesson for Employees: If you are working for a large employer you are entitled to leave but your employer is entitled to request evidence supporting your request for leave. Be prepared as to what type of evidence will ensure your employer that the request is valid including medical records or possibly a death certificate. If you take a partial day, it is deems to be a full day of leave.
The Lesson for Employers: Create a set policy for what is required as evidence for bereavement leave. If you deviate from the policy (possibly due to an employee whose family seems to be experiencing an epidemic) have reasons for the request and document the same. Be prepared that some employees, especially long-term employees may expect bereavement leave.
The future: Bill 148 proposes changes which will entitle all employees, including those working for employers with only a few employees to personal emergency leave.
Access Alliance Multicultural Community Health Center v Health Office Professional Employees and Education Division of UFCW, Local 175 (ONSC)
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