Stress Leave Ontario: Employee Rights

Stress is an inevitable part of life, and it can affect anyone, including employees. In Ontario, like in many other places, employees have rights and protections when it comes to taking stress leave from work.

Watch the video below from the Employment Law Show and read on to learn more about stress leave in Ontario, how you can access it, and the legal rights in place to support you during challenging times.

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What is stress leave in Ontario?

Stress leave, also known as sick leave due to stress or mental health leave, is a type of leave in Ontario that employees can take when they are experiencing excessive stress, anxiety, or other mental health issues that impact their ability to perform their job effectively.

It is important to note that stress leave is not limited to just stress but can encompass various mental health conditions such as depression, anxiety, and burnout.

Stress leave falls under the umbrella of “sick leave,” which is a statutory leave provided by Ontario’s Employment Standards Act (ESA), and the only one available from the government for employees suffering from stress.

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How many days off can I get for stress leave?

In Ontario, employees can get three unpaid days of stress leave each year under the ESA.

Some employees in Ontario also have an employment contract that gives them a specific number of days off work each year for sick leave. These days can be paid or unpaid. The sick leave in a contract will apply instead of the ESA if it provides greater benefits (i.e. paid leave, more days off).

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Who is eligible for stress leave in Ontario?

An employee qualifies for sick leave if they:

• Have been working for a company for at least two consecutive weeks in Ontario, either full-time or part-time.
• Need time off due to personal illness, injury, or medical emergency, including cases of significant stress.

Not Eligible

Certain jobs in Ontario have special rules regarding stress leave and employment rights. Some of those exceptions include:

• EMS, healthcare and health professionals
• Construction, manufacturing and mining workers
• Hospitality services and sales employees
• Transportation sector employees
• Agricultural, growing, breeding, keeping and fishing workers
• Landscaping and residential building service professionals
• Government employees

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What if I need more than 3 days off for stress leave?

Employees experiencing severe stress, like depression, may be eligible for extended stress leave if their condition is deemed a ‘disability.’

In Ontario, the Human Rights Code (Code) mandates employers to provide accommodations for employees with disabilities. This means that if you are facing significant stress, you may qualify for a job-protected leave that extends beyond the typical three-day limit. Employers must accommodate disabled employees, even if doing so becomes a little difficult for the company, up until the point of ‘undue hardship.’

In this case, employers must let employees take unpaid sick leave for an extended period of time to recover from mental health and stress issues, even if it goes beyond the minimum ESA rules or their employment contract.

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Is stress leave paid in Ontario?

Stress leave under the ESA is not paid, meaning that employers do not have to pay employees who use their allotted three sick days.

Ontario did provide paid sick days to employees affected by COVID-19 from April 19, 2021 to March 31, 2023 but that program has since ended.

There are other ways you can receive pay while off work due to stress.

Short-term Disability Insurance and Stress Leave

If you have a short-term disability policy through work, you can collect insurance payments to cover a portion of your salary while on stress leave. The stress must be severe enough to make you “totally disabled” from performing your job duties to qualify for this insurance.

Long-term Disability Insurance and Stress Leave

For stress that knocks you out of work for more than 90 to 120 days, you can move to long-term disability (LTD) insurance 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 and Stress Leave

In some cases, you might be eligible for Employment Insurance (EI) sickness benefits if intense stress is keeping you from work. These benefits can provide up to 15 weeks of income replacement, offering 55% of your earnings up to $573 weekly. To qualify, you’ll need to have worked a minimum of 600 hours in the past year and have paid premiums into EI.

WSIB Benefits and Stress Leave

If your severe stress is a direct result of your work environment, you may be entitled to Workplace Safety and Insurance Board (WSIB) benefits. However, the stress must be due to significant work-related factors, such as harassment.

Constructive Dismissal and Stress Leave

Sometimes, the source of stress is a toxic work environment with harassment or bullying. If that’s the case, you might have grounds for a constructive dismissal claim. This could entitle you to a full severance package in Ontario, as if you were let go without cause and possibly additional damages for the hardship you’ve endured.

Severance pay is based on factors like your age, time spent working for your employer, and your position, and can be as much as 24 months’ pay. The experienced employment lawyers at Samfiru Tumarkin LLP can secure a proper severance package that reflects the true value of your contributions and the impact of your job loss. Contact the firm that has successfully negotiated thousands of wrongful dismissal claims since 2007.

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

In Ontario, your employer can legally ask for a note from a doctor, nurse, psychologist, or other healthcare practitioner to confirm that you are unable to work, but only if the request is reasonable. Determining what’s reasonable involves looking at:

• How long you’ll be away from work.
• Your past record with taking leave.
• The availability and cost of getting a doctor’s note.

For stress leave, the note doesn’t need to specify stress as the reason for your absence. Medical notes are more commonly requested for longer absences than for short-term leaves.

What Can Employers Ask About Your Leave?

When it comes to stress leave in Ontario, your employer can reasonably ask:

• How long you may need to be away from work (your prognosis)
• The date you consulted with a healthcare professional.
• Confirmation that you were physically examined by the practitioner.

Your Privacy is Protected

It’s important to know that while employers can ask for a medical note, they can’t ask for details about your diagnosis or treatment. This means the specific reasons behind your stress leave remain confidential between you and your healthcare provider.

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Do I need to tell my employer before taking stress leave?

Ideally, you should plan ahead and tell your employer before taking stress leave. If you are unable to give advance notice of the leave, don’t worry. Your right to stress leave is still valid.

If the stress leave is unexpected, and you need to take leave urgently, inform your employer as soon as possible afterwards.

You should notify your employer about taking stress leave in writing, though it is not required. A verbal heads-up is enough.

Communicating with your employer about stress leave is important, but your health comes first. Always remember your well-being is a priority.

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Can my employer refuse to provide stress leave?

It is illegal for an employer to refuse stress leave if the employee has a legitimate mental health disability supported by documentation from their doctor. Your employer would be in violation of your human rights, and they would have to provide you with compensation.

Their refusal to approve your stress leave could also result in a constructive dismissal, which is a termination that occurs when your employer breaches the terms of your employment. You would be entitled to a full severance package – as much as 24 months’ pay. Contact an experienced employment lawyer at Samfiru Tumarkin LLP for a consultation, so we can determine how we can help secure the severance pay you are entitled to.

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What are my rights while on stress leave?

You have the following rights if you need to take a job-protected stress leave:

• Reinstatement: Returning from stress leave means you’re entitled to the same job you had before the leave, or a similar role if the former no longer exists. You’re guaranteed at least the pay you had before taking leave, including any raises you would have received during your time away.
• Penalties: Your employer is not allowed to penalize you for taking or planning to take sick or stress leave, nor can they do so if you inquire about your rights related to such leave. This protection ensures you can address your health needs without fear of negative consequences at work.
• Benefit Plans: When you’re on stress leave, you retain the right to remain part of your workplace’s benefit plans, which may include pension, life insurance, accidental death, extended health, or dental plans. Your employer must keep paying their portion of the premiums for any benefit plans you’re enrolled in, as long as you continue to pay your share.
• Length of Employment: You continue to earn credits toward the overall length or service of your employment and seniority. This means that even though you’re not actively working, you’re still gaining time towards important things like severance pay, vacation pay, vacation time, and other benefits.

Probationary Periods and Stress Leave

Should you need to take stress leave during your probationary period, this time away does not count towards completing probation. It’s like hitting pause on your progress until you return to work.

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Fired while on stress leave in Ontario

Generally speaking, your employer can fire you for almost any reason in Ontario. This is called a termination without cause. What they can’t do is fire you for discriminatory reasons, including disability. Your employer can’t fire you because you are on stress leave. It would be illegal and a human rights violation.

If you do lose your job for this reason, you are entitled to a full severance package – as much as 24 months’ pay – plus additional damages. The severance pay lawyers at Samfiru Tumarkin LLP can review your situation to determine how much you may be owed, and how we can help you secure the compensation you deserve.

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Employment Lawyers for Stress Leave

Facing repercussions at work for taking stress leave? At Samfiru Tumarkin LLP, our adept legal team is committed to defending the rights of employees in Ontario who have been unfairly penalized, fired, or denied benefits during or after taking stress leave.

If you’ve been fired, punished, or treated unjustly for addressing your mental health through stress leave, our lawyers are ready to stand with you. We have a strong history of holding employers accountable for failing to uphold the fair treatment of employees during such vulnerable times.

Because Samfiru Tumarkin LLP focuses specifically on employee rights, our expertise extends those who are refused short-term disability or denied long-term disability (LTD) benefits in Ontario for stress-related conditions. Our Ontario LTD lawyers understand the significant impact of these denials and vigorously work to ensure that you receive the support you’re entitled to.

If you are a non-unionized employee in Ontario, Alberta or B.C. who has lost your job, or you have been denied disability benefits in any province (excluding Quebec) contact us or call 1-855-821-5900 to get the advice you need and the compensation you deserve.