Workplace Stress Definition
Suffering from severe stress at work and interested in learning about stress leave in Ontario? You are not alone, according to the Globe and Mail, it is estimated that one in five people in the workforce experience mental health issues, including severe stress. It is also estimated that 500,000 Canadians call in sick due to mental health problems per week.
The Canadian Center for Occupational Health and Safety defines workplace stress as:
the harmful physical and emotional responses that can happen when there is a conflict between job demands on the employee and the amount of control an employee has over meeting these demands. In general, the combination of high demands in a job and a low amount of control over the situation can lead to stress.
Stress Leave in Ontario
Stress leave falls under the legal umbrella of “sick leave”.
Someone with severe stress can take “sick leave” just the same as someone suffering from the flu or some other physical ailment. To be clear, severe stress can be considered a sickness which entitles someone to take a sick leave.
In line with the above, just like any other ailment, employees can be required to get a doctor’s note stating that they are too sick to work, although, depending on the circumstances, the doctors note need not precisely specify the employee is suffering from “stress”.
To be clear, in Ontario, employers can lawfully ask for a sick note where it is reasonable to do so. Nevertheless, many employers have a policy in which they do not require a sick note, especially for short leaves of absence.
In Ontario, employers used to be prohibited from asking for sick notes, but that was eliminated in 2019.
Kinds of Stress Leave in Ontario
There are two kinds of leave someone can take in Ontario because of stress: (1) sick leave according to a contract or (2) minimum employment standards sick leave
1. Stress Leave According to Contract
Some employees will have an employment contract that gives them a certain amount of days per year to take off for sick leave. The contract can provide for paid or unpaid sick days.
Employees suffering from chronic stress are encouraged to check their contract for their sick leave entitlements. For example, a person’s employment contract could state they are entitled to ten paid sick days per year.
2. Stress leave according to minimum employment standards
Many employees will not have any sick leave entitlements in their employment contract. Therefore, those employees are only entitled to minimum sick leave standards that are enshrined in the Employment Standards Act.
Sick leave is the only statutory leave that is provided for by the Employment Standards Act for stress. Thus, employees suffering from stress can only take “sick leave”.
In Ontario, employees used to be entitled to ten days of something called “personal emergency leave”, but that was eliminated in 2019.
Sick leave is only for a maximum of three days pay year. In other words, employees without sick leave entitlements in their contract can only take three days for stress per year in Ontario.
However, some employers will permit an employee to take more than three stress leave days per year. Employees seeking to go on stress leave are encouraged to ask their employer if they can take more than three days for stress leave – many employers will approve. Note however that these stress leave days can be unpaid.
Click here to read more about sick leave generally in Ontario.
Prolonged Stress Leave in Ontario
Some employees with severe stress, including depression, may be able to go on stress leave longer than three days if their symptoms are serious enough to be considered a “disability”.
Under the Ontario Human Rights Code, employers must accommodate employees with a disability. Thus, because of the Human Rights Code, people with serious stress may be able to take a job-protected leave for a longer period. Under the Human Rights Code, an employer must accommodate disabled employees up to the point of undue hardship.
However, each case is fact-dependent, and individuals should seek legal advice from a lawyer for their specific circumstances.
Is Stress Leave Paid in Ontario?
Under the Employment Standards Act, sick leave is not paid, meaning employers do not have to pay people taking a stress leave. However, employers are allowed to pay employees on stress leave if they so choose, and many employers do provide for sick pay in their employment contracts.
However, there are other ways to recoup lost pay for taking a sick leave:
Disability Insurance and Stress Leave
If an employee has a short-term disability policy through work, they can collect insurance to pay their salary on stress leave. However, generally, to be eligible, the stress must be serious, like depression, and it must make the employee “totally disabled” from working.
Employees who have short term disability insurance denied for their stress leave are encouraged to call our firm for a free consultation.
In addition, in more serious cases, employees with long term disability insurance policies can apply for pay for stress leave that lasts longer than 90 to 120 days.
Employment Insurance and Stress Leave
Furthermore, in serious cases, employees can receive Employment Insurance (EI) sickness benefits while they are on stress leave.
Employment insurance sickness benefits provide employees with up to 15 weeks of income if they cannot work because of severe stress. Employees are eligible for EI sickness benefits if they have paid EI premiums and have worked 600 hours in the past 52 weeks. Employment Insurance sickness benefits provide employees 55% of their earnings up to a maximum of $573 a week.
Read More: EI and quitting over stress.
WSIB Benefits and Stress Leave
Moreover, some eligible employees may be entitled to WSIB benefits due to severe stress that is specifically caused from work.
Employees can file WSIB claims for work-related severe stress, but generally, there must be a “substantial work-related stressor” like abusive workplace behaviour that rises to the level that of workplace harassment. Workers are not entitled to WSIB compensation simply for stress stemming from discipline, assignments, etc.
Employees are encouraged to consult a lawyer to deal with WSIB benefits for severe stress at work because it is well known that WSIB benefits for stress is a difficult claim to succeed on; the WSIB denies over 90 per cent of stress claims.
Constructive Dismissal and Workplace Stress
Lastly, in case the employee’s stress is caused by workplace stress resulting from a poisoned work environment, harassment or bullying, the employee may be able to claim constructive dismissal which entitles them to a severance as if they had been terminated without cause. In addition, a constructively dismissed employee could be entitled to extraordinary damages like punitive damages.
Dutton Employment Law is a Toronto employment law group at Monkhouse Law that advises employees and employers on employment law in all industries all over Ontario. We are proud to offer free consultations. Contact us today.
Jeff is an employment lawyer in Toronto. He is the Principal of the Dutton Employment Law Group at Monkhouse Law. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles.