Personal Emergency Leave

Act: Employment Standards Act, 2000
Regulation: N/A

To Whom Does This Apply?

Before you read this document, please read the Ministry's General Information Fact Sheet and find out if the ESA (Employment Standards Act) applies to you.

Summary

What is emergency leave?

Emergency leave is unpaid, job-protected leave of up to 10 days each year.

Emergency leave may be taken in the case of illness, injury and certain other emergencies and urgent matters.

Who can take emergency leave?

Employees who work for employers that regularly employ at least 50 employees are entitled to emergency leave.

What if an employee works for a employer that regularly employs fewer than 50 employees?

The employee is not entitled to emergency leave under the ESA.

For what reasons can an unpaid emergency leave be taken?

An employee who is entitled to emergency leave can take up to 10 days' unpaid leave of absence due to:

• personal illness, injury or medical emergency, and
• death, illness, injury, medical emergency or other urgent matters relating to:
• a spouse or same-sex partner;
• a parent, step-parent, foster parent, child, step-child, foster child, grandparent, step-grandparent, grandchild or step-grandchild of the employee, the employee's spouse or the employee's same-sex partner;
• the spouse or same-sex partner of an 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.

What if an employee’s contract provides paid sick leave or bereavement leave?

If a contract (which includes a collective agreement) provides a greater right or benefit than the personal emergency leave standard in the ESA, then the terms of the contract apply instead of the personal emergency leave provisions of the ESA.

If the contract does not provide a greater right or benefit than the personal emergency leave standard in the ESA, the personal emergency leave provisions of the ESA will apply to the employee, and the ministry will not get involved in how the leave provisions of the contract are applied. For example, a contract only provides three paid personal sick days and three paid bereavement leaves days per year. It does not provide job-protected time off for any other reason. This contract does not provide a greater right or benefit than the ESA’s personal emergency leave provisions. This means that the employee will be entitled to 10 unpaid days’ personal emergency leave per calendar year for any of the reasons listed in the ESA. If the employee takes 10 days of personal emergency leave for personal illness, the employee will have used up the entitlement under the ESA. The questions of whether any of those absences must be paid, and whether those absences draw down against the three paid sick leave days under the contract is not a matter the ministry gets involved in.

Is personal emergency leave the same as family medical leave?

No. Personal emergency leave is unpaid, job-protected leave of up to 10 days each calendar year. Personal emergency leave may be taken in the case of personal illness, injury or medical emergency and the death, illness, injury, medical emergency of or urgent matters relating to certain family members and dependent relatives.

Family medical leave, on the other hand, is unpaid, job-protected leave of up to eight (8) weeks in a 26 week period. Family medical leave may be taken to provide care and support to certain family members for whom a qualified health practitioner has issued a certificate stating that this family member has a serious illness with a significant risk of death occurring within a period of 26 weeks.

Further, while only employees who work for employers that regularly employ at least 50 employees are entitled to personal emergency leave, this is not a requirement for family medical leave. The persons for whom a family medical leave may be taken differ from the persons specified for personal emergency leave. See the "Family Medical Leave" fact sheet for further information about family medical leave.

Am I entitled to both personal emergency leave and family medical leave?

An employee may be entitled to both leaves. They are separate leaves and the right to each leave is independent of any right an employee may have to the other leave. An employee who qualifies for both leaves would have full entitlement to each leave.

Rights and Responsibilities

How long is a personal emergency leave?

A personal emergency leave of absence can last up to 10 days a year.

Does personal emergency leave have to be taken all at one time?

The 10 days of a personal emergency leave don't have to be taken consecutively.

However, personal emergency leave is generally counted in full days. Even if an employee takes only part of a day as a personal emergency leave, the employer can count it as a full day of leave. For example, an employee who takes half a day off to take his or her child for medical tests may be deemed to have taken one day's leave.

How do employees tell their employers about their plans?

An employee must inform the employer before starting the leave that he or she will be taking a personal emergency leave of absence.

What if there is no time for the employee to give advance notice?

If an employee has to begin a personal emergency leave before notifying the employer, he or she must inform the employer as soon as possible after starting the leave.

Does the employee lose the right to take personal emergency leave if the employee does not properly inform the employer of the leave?

No. If the qualifying conditions described earlier are met, an employee is entitled to take a personal emergency leave. While an employee is required to tell the employer in advance that they are taking a leave (or, if this is not possible, as soon as possible after starting the leave), the employee will not lose the right to take personal emergency leave if the employee fails to do so. An employer may discipline an employee who does not properly inform the employer, but only if the reason for the discipline is the failure to properly notify the employer and not in any way because the employee took the leave.

Can the employer ask for evidence of why the employee took a personal emergency leave?

An employer is allowed to ask an employee to provide evidence that he or she is eligible for a personal emergency leave of absence. The employee is required to provide evidence that is reasonable in the circumstances.

Can an employer fire an employee for taking leave?

No. If an employee is eligible for a personal emergency leave, the employer cannot penalize him or her in any way for taking a leave.

What happens to an employee's pay, seniority and benefits?

• Employers do not have to pay wages when an employee is on personal emergency leave
• Employees earn seniority and credit for length of service and length of employment while on personal emergency leave
• While an employee is on personal emergency leave, the employer must continue to pay its share of the premiums to certain benefit plans (i.e., pension plans, life, accidental death, extended health insurance plans and dental plans) that were offered before the leave.

What if the employer does not follow the ESA?

If an employee thinks the employer is not complying with the ESA, he or she can call the Employment Standards Information Centre at 416-326-7160 or toll free at 1-800-531-5551 for more information about the ESA and how to file a complaint. Complaints are investigated by an employment standards officer who can, if necessary, make orders against an employer—including an order to comply with the ESA. The ministry has a number of other options to enforce the ESA, including requesting voluntary compliance, issuing an order to pay wages, an order to reinstate and/or compensate, a notice of contravention, or issuing a ticket or otherwise prosecuting the employer under the Provincial Offences Act.

This document is based on information from the fact sheet  Personal Emergency Leave (last updated October, 2006).

This Fact Sheet is provided for your information and convenience only.  It is not a legal document.  For further details, consult  Publications . For complete information, refer to the Employment Standards Act, 2000 and its regulations.

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DISCLAIMER
Information contained in this section is of a general nature only and is not intended to constitute advice for any specific fact situation. For particular questions, the users are invited to contact their lawyer. For additional information, see contact(s) listed below.

Ontario Contact(s):
Employment Standards Information Centre
Ministry of Labour - MOL
Ontario 
Telephone: 416-326-7160
Fax: 416-314-8725
Toll-free (information): 1-800-531-5551
E-mail: webes@mol.gov.on.ca
Web site: http://www.labour.gov.on.ca/english/index.html