Managing long-term illness leave will mean navigating both ESA and Ontario Human Rights Code, lawyer says
Starting this summer, Ontario workers dealing with serious illness or disabilities will gain access to protected job leave.
Under provisions introduced in Ontario’s Working for Workers Six Act of 2024, unpaid long-term illness leaves will come into effect on June 19.
According to the Employment Standards Act (ESA), this new amendment will allow employees who have worked for employers for 13 consecutive weeks to take 27 weeks of unpaid illness leave within a 52-week period.
So, what does this mean for employers—and how should they prepare?
“Employers should be reviewing their existing discrimination and leave policies to make sure that they align with the incoming requirements,” says Frank Portman, an employment lawyer from Massey LLP. “In particular, balancing the overlapping obligations of the ESA and Ontario’s Human Rights Code.”
According to the government, to be eligible for the leave, employees must meet two conditions: they must have a serious medical condition, and they must provide a certificate from a qualified health practitioner confirming both the condition and the length of time the employee will not be able to work due to the condition.
The leave does not have to be taken consecutively, and employers are required to reinstate employees to their job or a comparable one once they return.
Like other changes under the Working for Workers legislation, the govermnet says this amendment is to provide stronger protection for employees' well-being.
Rich Appiah, an employment lawyer from Appiah Law, says the biggest shift under the ESA is that employers can no longer ask for detailed medical information to justify long-term absences.
"This is in contrast with HR practices that have been implemented for a very long time," he says.
Therefore, to avoid compliance risks, employers need to make sure their internal policies account for both ESA and Ontario Human Rights Code obligations.
Appiah recommends that employers integrate the ESA amendment into their existing leave policies, rather than treating it as an additional policy. He also emphasizes that employers should strictly follow the requirements under the act.
For example, he explains that employers with self-insured short-term disability policies may currently require detailed medical documentation to access paid leave. However, if they want that leave to count toward the ESA’s new provision, they cannot apply stricter documentation requirements than what the amendment allows.
“You can’t say to the employee, to get that time off, they have to provide more information than is required under the act,” he says.
Regardless of the amendment, Appiah says employers still have a duty to accommodate absences under the Human Rights Code.
If an employee has exhausted the 27 weeks of ESA leave, it doesn’t necessarily mean they lose the right to take additional time off due to illness or disability. If circumstances warrant it under the Human Rights Code, employees may still be entitled to extended leave—to the point of undue hardship for the employer.
“The Human Rights Code runs parallel to the ESA,” he explains.
Both the Human Rights Code and ESA provide protection for employees who need to take time off due to illness or disability—but they operate differently, says Portman. And employers need to be aware of how these two frameworks work.
Both entitle employees to take medical leave when they are dealing with a serious health condition.
In most cases, he says, an employee who qualifies for the ESA's new long-term illness leave may also qualify for accommodation under the Human Rights Code.
However, they differ in how the leave is granted and managed.
Under the Human Rights Code, employers have a legal duty to provide reasonable accommodation to employees up to the point of undue hardship. This can include short- or long-term leave.
“Undue hardship” refers to the point where an employer can no longer accommodate an employee without significant disruption or difficulty to the business.
Portman explains it's typically up to employers to decide whether a leave of absence is a reasonable accommodation. In some cases, they may modify tasks the employee can still perform within their medical limitations.
According to the Ontario Human Rights Commission, employees seeking leave under the code generally need to disclose their medical condition with documentation if requested by the employer, along with an estimated return-to-work date. During the leave, they may also be asked to provide updates on their condition and return timeline, which isn’t required under the ESA’s new amendment.
With the new ESA unpaid, long-term illness leave, that flexibility is no longer part of the framework, he says.
“The protections given to employees under the ESA's new protected leave are more strict and unforgiving, frankly, than what's available under the human rights legislation."
Under the ESA amendment, employers will no longer decide if a leave is appropriate. If an employee meets the two conditions of the act, they are entitled to it, Portman says.
“There is no reasonableness analysis or undue hardship,” he says.
This change also affects job reinstatement. When employees take long-term leave under the Human Rights Code, employers aren’t required to reinstate them to the same job, especially if there have been organizational changes.
“The ESA doesn’t provide that same flexibility,” Portman explains.
With this new amendment, Portman says employers need to be firm about obtaining medical certificates from employees to support long-term organizational planning.
Since the leave does not have to be taken consecutively over a 52-week period, employers may face unexpected staffing and operational challenges.
One of the most disruptive things for employers isn’t the absence itself—it’s the unpredictability of it, Portman explains: “[Employers] need to know what [they’re] dealing with in order to plan effectively.”
Having a medical certificate from a doctor outlining the length of an employee's leave is important and will help with both compliance and workforce management.
He notes that the biggest challenge employers face in managing disability-related situations is the fear or hesitation to ask for health-related information. It can be a sensitive topic, and employers often encounter pushbacks.
“I think what this [act] does is really solidify the fact that, as an employer, you are not going to be hurt by knowing the information that you need to deal with these leaves,” Portman says.
Both lawyers are still uncertain, however, about how this new amendment will play out.
With this act affecting how disability leave and undue hardship are managed, Portman says there are “a lot of shoes to drop.”
“As this rolls out, we're going to very soon start to see some very interesting and not at all clear feedback, whether it be through Ministry of Labour complaints or judicial hearings,” he adds.
Appiah also sees potential friction around the medical documentation requirements. “That’s going to be difficult for some employers to manage,” he says.
