Intersection Between Personal Emergency Leave And The Duty to Accommodate

Aug 1, 2018

Under the Employment Standards Act (ESA), employees have the right to 10 days of job protected time off for personal emergency leave (PEL). This includes leave for ‘urgent matters’ or illness, injury or medical emergency of the employee or a specified family member (i.e dependents, spouse, parents, etc). It is important, however, that employers/human resources personnel interpret PEL as a minimal entitlement and are aware of possible intersections of prohibited grounds of discrimination under human rights law. If PEL is related to a discriminatory ground, exceeding 10 absences due to PEL does not render an employee’s job unprotected. An employer in this scenario would need to suffer undue hardship in attempts to accommodate the employee before a dismissal is justified.
Examples of PEL intersecting with protected grounds of discrimination include some of the following: absenteeism due to personal illness, illness of a dependent, childcare responsibilities, and/or pregnancy among others. In such instances, employers must go beyond the requirements of the ESA and attempt to provide accommodation. For instance, if it is known that an employee’s situation will improve – this may include a medical prognosis for a known illness, temporary childcare arrangement difficulties, or other indicators of improvement – granting a short term leave or further days off for appointments/treatment, etc, would all be sufficient forms of accommodation.
Although accommodation beyond PEL entitlements may cause some hardship for an employer, the fact that the standard is accommodation up to the point of undue hardship implies that some hardship is expected. If you are an employer and suspect that accommodation is causing undue hardship, it is important to seek consultation from an employment lawyer, as a human rights claim can be costly.

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