The Ontario Ministry of Labour, Immigration, Training and Skills Development recently held a consultation on a proposal to include a new 27 week job-protected medical leave in the Employment Standards Act, 2000 (ESA). There are currently several different kinds of leaves already outlined in the ESA, as well as other legal protections included under the Human Rights Code that are meant to protect workers’ jobs if they must take time off because of a disability, but these protections can be hard to enforce and don’t apply to all workers who need a temporary medical leave.
Currently, there is a mismatch between job-protected time off and income support for employees who are unable to work for medical reasons. Employees in Ontario can access three unpaid job-protected sick days under the ESA. For longer sick leaves, workers can apply for income support through EI sickness benefits, but there is a waiting period of one week before EI sickness benefits begin.
The one week waiting period to access EI benefits means that employees in Ontario who require a leave longer than three days will have lost their job protection before they can collect EI sickness benefits. As a result, they could face job loss and the ensuing serious financial repercussions for taking sick leave.
ISAC welcomes the proposal of a 27 week job-protected medical leave in order to address the current gap in protection for workers, and has set out five key recommendations for the Ministry.
As we developed our submissions to the Ministry, we aimed to keep the workers we advocate for in mind. This includes workers engaged in low-wage precarious work; work that is part-time, casual, temporary or contractual; and which is usually characterized by insecurity, instability, and no access to private insurance benefits. Most of the workers we represent are not unionized. Members of equity-seeking groups are overrepresented in low-wage and precarious work, including persons who are racialized, Indigenous, living with disabilities, women, and migrants. It is essential that any new proposal considers the lived reality of these workers.
ISAC’s Key Recommendations on Personal Long-Term Illness Leave Under the ESA:
- The eligibility requirements for long-term medical leave under the ESA should align with the eligibility requirements for EI sickness benefits. In particular, the leave should be available to employees who are unable to work for medical reasons, including illness, injury, or quarantine. The new long-term personal illness leave should not be restricted to workers with a critical illness or a serious medical condition, as the Ministry of Labour had proposed. Both the critical illness and the serious medical condition requirements create too high a bar to access job protection when a worker is unable to work for legitimate and verifiable medical reasons.
- The medical certificate required as evidence for the proposed leave should mirror the EI sickness benefit medical certificate. Where an employee accesses EI sickness benefits, they should be permitted to provide the same medical certificate required to access EI sickness benefits in order to access the proposed leave. This streamlines the process and reduces administrative burdens on healthcare providers. To protect workers’ privacy, it is important that workers not be required to disclose a diagnosis or details of their illness or injury to their employer.
- The list of health care providers who can complete the medical certificate should expand to mirror the list applicable to EI sickness benefits. The EI sickness benefit list includes: medical doctor, chiropractor, podiatrist, optometrist, psychologist, dentist, midwife, nurse practitioner, registered nurse (in isolated areas when a doctor is unavailable). They must practise in Canada or the United States and the illness they are treating must be in their field.
- The length of service required to qualify for the new leave should be no more than two consecutive weeks. This approach would be consistent with the length of service required to qualify for three days of unpaid sick leave under the ESA.
- Ontario must reinstate 10 Personal Emergency Leave days in the ESA with 7 days of paid sick leave. Ontario should also provide for an additional 14 days of paid sick leave during declared pandemics.
For workers in low-wage, precarious work who cannot access private insurance benefits, loss of a job due to temporary illness can have severe and damaging consequences on their income security, leading to housing instability and homelessness, worsened health, and reliance on inadequate social assistance.
Following ISAC’s recommendations would benefit workers and employers and support Ontario’s economy and health care system. Streamlining the eligibility requirements for the proposed leave with EI sickness benefits is the simplest, most fair, and most effective approach.
We urge the Ministry to include these recommendations in the development of any new legislation on personal long-term illness leave.
You can read our full submission in English by clicking here (PDF). La version PDF française est ici.