Stress Leave In Ontario: Introduction
In this article, we’ll explain what stress leave is, who is entitled to it, how long it can be, what rights an employee has during the leave, and what financial support might be available to someone on leave.
After reading this article, if you have any more questions about stress leave or your rights in the workplace, feel free to contact 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. No lawyer-client relationship is created by accessing or otherwise using Ertl Lawyers’ website or 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.
What is Stress Leave?
Stress leave is a type of leave that employees in Ontario can take when they are suffering from excessive stress, anxiety, or other mental health issues that hinder their ability to carry out their job responsibilities effectively.
“Stress leave” is considered a type of “sick leave” as per Ontario’s Employment Standards Act (“ESA”).
Who Is Entitled To Stress Leave In Ontario?
With limited exceptions, all provincially regulated employees in Ontario, either full or part-time, are entitled to stress leave provided they’ve been with their employer for at least two consecutive weeks. [Certain professionals, such as health practitioners, may be prohibited from taking sick leave if it would amount to professional misconduct or a dereliction of professional duty].
Employees are entitled to stress leave even if the stress or illness isn’t work-related.
Federal employees and Ontario workers in federally-regulated industries also have a right to take stress/sick leave, as found in the Canada Labour Code.
How Much Stress Leave Am I Entitled To?
In Ontario, employees get up to three unpaid days of stress leave each year under the ESA, regardless of their start date.
Employees cannot carry forward their unused sick leave days to the following year. They have the flexibility to take the three days of leave either in part days, full days, or in periods of more than a day and need not be taken consecutively. If an employee takes only a part of a day as sick leave, the employer has the authority to count it as a full day of leave.
If an employment contract or collective agreement provides more sick leave than the ESA, that agreement applies.
If there is no provision for a greater right or benefit in the contract, then the sick leave standard set forth in the ESA applies to the employee. However, if the employment contract has a provision similar to sick leave, such as paid “sick days,” and the employee avails of such leave under the employment contract, it will be considered sick leave taken under the ESA.
Federal employees and Ontario workers in federally-regulated industries have a right to a minimum of five days off annually for stress/sick leave per the Canada Labour Code. 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 pay rate.
What Are My Legal Rights Regarding Stress/Sick Leave?
If you need to take a stress leave, your job is protected, and you are afforded the following rights.
1. Right to Reinstatement
When you return from the 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 earned before taking 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 a higher wage when you return to work.
If your employer dismisses you for reasons utterly unrelated to taking stress leave (e.g., your employer finds out you were stealing), you do not have to reinstate you.
2. 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.
3. Right To Continue To Participate In Benefit Plans
If you take stress leave, you have the right to continue taking part in specific 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 offered to you before your 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.
4. Right To Combine Sick/Stress Leave With Other Leaves
If you are sick or stressed because of a situation for which you are entitled to another type of leave under the ESA, you can add together two (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
5. Right To Earn Credit Towards Length of Employment
You continue to earn credit 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, vacation time off, and other benefits.
However, if you take stress leave while on probation, that time off does not count towards completing your probationary period.
Employee Obligations Regarding Stress Leave & Sick Leave
You also have legal obligations if you need to take stress/sick leave.
1. Notice Requirements
Ideally, it would be best if you let your employer know before taking leave before you do so. If you have to start the leave before you can notify your employer, you must let them know immediately after starting it. You don’t need to give written notice; verbal notice is also acceptable.
Even if you cannot notify your employer that you need time off for sick/stress leave, you do not lose the right to take the leave.
2. Proof of Entitlement
Your employer may need to provide evidence that you are entitled to take sick leave if it is reasonable.
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.
3. Medical Notes
If reasonable circumstances do exist, and your employer asks for a medical note, that note only has to include the following information:
- The date your healthcare provider saw you.
- If you were seen by the healthcare professional who signed the note in person.
- 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 the diagnosis (i.e., your medical condition) or what kind of treatment you are receiving.
Financial Support During Stress or Sick Leave
Suppose 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 primary duties of your work (known as being “totally disabled”). In that case, you may be entitled to financial support while you’re off work, treating your condition through your insurance plan or government-funded resources. Remember, the stress does not have to be work-related for you to be eligible for the following supports.
1. Short-term and Long-term Disability Benefits
If your employment includes insurance coverage for short-term and long-term disabilities, you may be entitled to benefits designed to replace a portion of your wages while 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.
2. 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. At the same time, 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).
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