Stress is a part of life that, in small doses, can be healthy as it helps us perform under pressure to meet deadlines, deliver presentations, arrive on time, etc. Unfortunately, for far too many people, stress is constant, and when it builds up over time, it can lead to dangerous medical conditions, including high blood pressure and heart conditions, anxiety, gastrointestinal complications, and so many more.
Unless your employment contract designates a specific leave for stress, your right to take time off for ‘stress leave’ to clear your head or seek treatment will likely fall under your entitlement to sick days or personal leave.
So what are your rights regarding stress/sick leave? What specific job protections do you have should you need to take stress leave? And if your personal stress snowballs into a disabling condition, how can you support yourself while you receive treatment? You can learn more about stress leave in this post, and if you have any further questions regarding stress leave or your rights in the workplace, reach out to us at Ertl Lawyers.
Disclaimer: The information in this guide and everywhere else on this website is for general information only and is not intended to provide legal advice of any kind. No lawyer-client relationship is created by accessing or otherwise using Ertl Lawyers’ website or by communicating with a lawyer or staff member. If you need legal advice, contact one of Ontario’s leading employment and LTD lawyers at Ertl Lawyers. We’re more than happy to speak with you.
Who is Entitled to Stress Leave in Ontario?
Most workers in Ontario are covered by the legal minimum provisions for stress/sick leave in the Employment Standards Act and are entitled to a minimum of three unpaid days off per calendar year for sick/stress leave – as long as they’ve been with their current employer for at least two consecutive weeks. You are entitled to that leave even if your stress or illness isn’t work-related.
There are certain professions and/or positions that have special rules in the ESA when it comes to stress/sick leave and other employment rights for whom the legal minimum may not apply. Some of those exceptions include the following:
- EMS, healthcare and health professionals.
- Manufacturing, construction and mining workers.
- Hospitality services and sales employees.
- Transportation services workers.
- Agricultural, growing, breeding, keeping and fishing workers.
- Landscaping and residential building service professionals.
- Government employees.
Check this page for the full list of exemptions with links to their specific pages containing their rights.
Unionized workers with collective bargaining agreements and employees with employment contracts that provide more than three unpaid days off for stress and/or sick leave have those entitlements as the minimum they are allowed.
Federal employees and Ontario workers in federally-regulated industries also have a right to a minimum amount of stress/sick leave, as found in the Canada Labour Code.
At the time of this writing, the minimum stress/sick leave (called “personal leave”) is five days off in every calendar year for federal workers. If the employee has completed three consecutive months of continuous employment with their employer, they are entitled to pay for the first three days of the leave at their regular rate of pay.
As with other workers in provincially-regulated workplaces, federal employees and workers in federally-regulated industries may be entitled to more time off for stress leave as per their employment contract or their collective bargaining agreements.
What Are My Legal Rights on Stress/Sick Leave?
If you need to take a stress leave, your job is protected, and you are afforded the following rights.
The Right to Reinstatement
When you return from stress leave, you are entitled to the same job you had before the leave began or a comparable job if your old one no longer exists.
Either way, you must be paid at least as much as you were earning before you took stress leave. If the wages for your job increased while you were on leave, or they would have gone up if you hadn’t been on leave, your employer must pay you the higher wage when you return to work.
If, however, your employer dismisses you for reasons that are completely unrelated to the fact that you took stress leave (e.g., your employer finds out that you were stealing), your employer does not have to reinstate you.
The Right to be Free From Penalty
Your employer cannot penalize you in any way if you:
- Took sick or stress leave.
- Plan to take sick leave for stress.
- Ask about your rights regarding stress leave/sick leave.
The Right to Continue to Participate in Benefit Plans
If you take stress leave, you have the right to continue taking part in certain benefit plans that your employer may offer, such as:
- Pension plans.
- Life insurance plans.
- Accidental death plans.
- Extended health plans.
- Dental plans.
Your employer must continue to pay their share of the premiums for any of these plans that were offered to you before your stress/sick leave unless you tell your employer in writing that you will not continue to pay your share of the premiums while you are on leave.
Combining Sick/Stress Leave with Other Legally-Required Leaves
If you are sick or stressed out because of a situation for which you are entitled to another type of leave under the ESA, you can add the two leaves (or more) if you need more time off. Examples of other leaves workers are legally allowed in Ontario include:
- Bereavement Leave
- Child Death Leave
- Crime-Related Child Disappearance Leave
- Critical Illness Leave
- Domestic or Sexual Violence Leave
- Family Caregiver Leave
- Family Medical Leave
- Family Responsibility Leave
The Right to Earn Credit for Length of Employment
You continue to earn credits towards the length of your employment, the length of your service and seniority while you are on stress leave. This impacts your entitlements regarding severance pay, vacation pay and vacation time off, as well as other benefits.
However, if you take stress leave while you are on probation, that time off does not count towards completing your probationary period.
Employee Obligations Regarding Stress Leave & Sick Leave
If you need to take stress/sick leave, you also have legal obligations.
Ideally, you must inform your employer before taking sick/stress leave before you do so. If you have to start the leave before you can notify your employer, you must let them know as soon as possible after starting it. You do not have to give written notice; verbal notice is also acceptable.
Even if you are unable to notify your employer that you need time off for sick/stress leave, you do not lose the right to take the leave.
Proof of Entitlement
Your employer may require you to provide evidence that you are entitled to take sick leave if it is reasonable in the circumstances.
Whether reasonable circumstances exist depends on factors such as the duration of the leave, whether you have a history of absences, if any evidence is available, and the cost of that evidence.
If you’re unsure of whether it’s reasonable for your employer to ask you for proof, consult an employment lawyer in Mississauga or any other location convenient to you.
If reasonable circumstances do exist, and your employer asks for a medical note, that note only has to include the following information:
- The date you were seen by your healthcare provider.
- If you were seen in person by the healthcare professional who signed the note.
- The expected length of your sick/stress leave.
- Information that will help them provide you with workplace accommodations.
The note must be from a recognized healthcare provider like a doctor, nurse practitioner or psychologist.
Your employer is not entitled to know what the diagnosis is (i.e., what your medical condition is) or what kind of treatment you are receiving.
Financial Support During Stress or Sick Leave
If the stress you experience triggers a medical condition such as PTSD, anxiety, depression or gastric ulcers, and that condition is severe enough that it disables you from being able to complete the main duties of your work (known as being “totally disabled“), you may be entitled to financial support while you’re off work treating your condition from your insurance plan or through government-funded resources. Remember, the stress does not have to be work-related for you to be eligible for the following supports.
Short-Term and/or Long-Term Disability Benefits
If your employment includes insurance coverage for short-term and/or long-term disabilities, you may be entitled to benefits designed to replace a portion of your wages while you’re on leave. Rules regarding your short-term vs long-term disability coverage and other guidelines will be stated in the policy, such as:
- Eligible conditions.
- Length of coverage.
- Application requirements.
- Amount of the benefits.
Unfortunately, insurance companies routinely deny legitimate claims for benefits, especially when it comes to mental illness disability claims. If your claim is denied, speak to us right away.
Federal and Provincial Support for Long-Term Sick & Stress Leave
If your workplace does not offer LTD insurance coverage, and your stress leads to a disability that leaves you “totally disabled,” and you need financial support while off work, you may be eligible for the following government programs:
- Employment Insurance (EI) sickness benefits.
- Canada Pension Plan (CPP) Disability Benefits.
- WSIB benefits if your mental health leave is based on a workplace incident.
- The Ontario Disability Support Program (ODSP).