Stress leave in Ontario: Employee rights

Stress leave in Ontario: 3 unpaid sick days annually

Under Ontario’s Employment Standards Act (ESA), employees with at least two weeks on the job are entitled to up to three unpaid sick days per year, which can be used for stress leave. However, many employees can take more time off if their stress amounts to a disability, requiring accommodation under the Ontario Human Rights Code.

• LEARN MORE: Sick days in Ontario explained

Stress leave, also known as mental health leave, is a job-protected leave under the ESA that allows employees to take time off work due to severe stress or other mental health issues like anxiety, depression, or burnout. This leave ensures employees can address their mental health without fear of losing their job or facing discrimination. Understanding your rights and the legal framework surrounding stress leave is crucial for maintaining both your mental health and job security.

Watch the video below from the Employment Law Show to learn more about workplace stress and what employees need to know:

Who qualifies for stress leave?

To qualify for stress leave in Ontario, employees must have worked for their employer for at least two consecutive weeks, either full-time or part-time. Under the ESA, they are entitled to up to three unpaid days of sick leave each year, which can be used for stress-related reasons. The stress does not need to be work-related for an employee to qualify.

How long can I take off for a stress leave in Ontario?

Under the ESA, employees in Ontario are entitled to take up to three days of unpaid sick leave each calendar year, which includes stress leave. These days can be taken consecutively or individually, but any part of a day taken as leave may be counted as a full day by the employer. If an employment contract provides more generous leave, those terms will apply instead of the ESA minimum.

What if I need more than three days off for stress leave?

If you find that three days of stress leave are not enough to recover, you may qualify for an extended leave if your condition is considered a disability under the Ontario Human Rights Code (OHRC). Employers are required to accommodate your needs, allowing you to take additional unpaid leave beyond the ESA minimum, up to the point of “undue hardship.”

For financial support during extended leave, you may be eligible for benefits such as:

Short-term Disability Insurance (STD)

STD benefits in Ontario provide a portion of your salary if your condition is severe enough to make you “totally disabled.”

Long-term Disability Insurance (LTD)

For stress that knocks you out of work for more than 90 to 120 days, you can move to LTD insurance benefits in Ontario. This coverage is designed for more severe cases and can provide continued financial support when short-term benefits are no longer enough.

Insurance companies often deny legitimate LTD claims for various reasons. They do this to increase the amount of profit they make. If you are unable to work due to injury or illness, and you have solid support from your doctor, you are entitled to your insurance policy. The disability lawyers at Samfiru Tumarkin LLP have a history of success advocating for our clients and ensuring that their insurance provider pays them what they are owed. Sandra Bullock and Julie Austin are just two examples of thousands of Canadians we have helped over the years.

Employment Insurance (EI) Sickness Benefits

EI sickness benefits provide up to 15 weeks of income replacement at 55% of your earnings, capped at $668 per week. Eligibility requires 560 to 700 hours of work in the past year, depending on your economic region in Ontario, and payment of EI premiums.

Workplace Safety and Insurance Board (WSIB) Benefits

WSIB benefits are available if your stress is work-related, such as from harassment.

Ontario Disability Support Program (ODSP) Benefits

ODSP is available for those with severe disabilities who require additional support.

It’s essential to have medical documentation supporting your need for extended leave to ensure your employer meets their obligations. If your employer denies your request or fails to accommodate, this could lead to a constructive dismissal claim, entitling you to full severance pay – as much as 24 months’ pay.

Can my employer ask for a medical note for stress leave?

In Ontario, your employer can legally request a medical note if you take stress leave, but this request must be reasonable. Reasonableness depends on factors like the length of your leave and your history of sick leave. Employers can ask for basic details, such as the duration of your absence and confirmation that you were seen by a healthcare professional. However, they can’t demand specifics about your diagnosis or treatment, ensuring your privacy is protected.

How to go on stress leave in Ontario

If you need to take stress leave in Ontario, start by informing your employer, ideally before your leave begins. If the leave is unexpected, notify your employer as soon as possible afterward. While advance notice isn’t always required, providing it helps ensure a smoother process.

Written notice is preferred, but a verbal heads-up suffices. For longer absences, you may need to provide a medical note, but your employer can’t ask for specific details about your diagnosis or treatment.

Rights while on stress leave

When you take a job-protected stress leave in Ontario, you have several key rights:

• Reinstatement: You’re entitled to return to your previous job or a similar position with equal pay, including any raises accrued during your leave.
• No Penalties: Your employer can’t penalize you for taking stress leave or inquiring about it.
• Benefit Plans: You maintain your workplace benefits, with your employer continuing to pay their share of premiums.
• Employment Credits: Your leave time counts toward your employment length, seniority, and benefits like severance, and vacation pay and vacation time off work.
• Probation Periods: Stress leave pauses your probation period until you return to work.

Fired while on stress leave in Ontario

In Ontario, employers can terminate employment without cause, but they can’t fire you for discriminatory reasons, including taking stress leave. Dismissing an employee for being on stress leave is illegal and a violation of human rights.

If you’re terminated for this reason, you may be entitled to a full severance package of up to 24 months’ pay, plus additional damages. The severance pay lawyers at Samfiru Tumarkin LLP can assess your case and help you secure the compensation you deserve.

Employment Lawyers for Stress Leave

Facing repercussions for taking stress leave? At Samfiru Tumarkin LLP, we are dedicated to protecting the rights of employees in Ontario who have been unfairly treated, fired, or denied benefits. Our experienced lawyers specialize in defending those wronged for addressing their mental health needs. If you’ve been unjustly treated or denied disability benefits, contact us or call 1-855-821-5900 for the legal support and compensation you deserve.