Are employees automatically entitled to Personal Emergency Leave days?
Updated: Dec 10, 2018
A common misconception among employees is that there is an automatic entitlement to Personal Emergency Leave ("PEL") days. While it is true that employees, generally speaking, have a statutory right pursuant to the Employment Standards Act, 2000 ("ESA") to take up to 10 personal emergency leave days per year, an employee must satisfy the requirements established by the ESA in order to access those days. This point was most recently addressed by Arbitrator Stout in Corporation of the Town of Oakville v Oakville Professional Fire Fighters Association, Local 1582, 2018 CanLII 88290.
In that case, the Town denied paid personal emergency leave to an individual firefighter on the basis that (a) the Collective Agreement provided a greater right or benefit than the ESA standard provided, and (b) his request for a “personal liberal day” because he was entitled to it according to “Liberal legislation: and was not required to provide a reason/response for attending to a “personal matter”. In considering the issue, Arbitrator Stout found that the issue required a comparison of “all elements of the statutory standard with a package comprised of all collective agreement provisions dealing with the same subject matter” (at para 26) and that first required a global analysis and then an examination of the individual’s entitlements (at para 29). In order to resolve the grievance, Arbitrator Stout found that he was not required to consider the greater right or benefit issue because the grievance could be resolved on the second ground (i.e. that the grievor was not entitled to the PEL in any event). On this point, and in dismissing the grievance (in part), Arbitrator Stout made the following helpful comments at paragraphs 39 and 42 of his decision:
 …However, subsection 50(13) provides that the employer may not require a certificate from a qualified health practitioner as evidence. In my view, reading the provisions in their entire context and harmoniously with the scheme of the ESA, employees who wish to take a PEL are required to advise an employer of the nature of the request and provide reasonable evidence. The Grievor in this case did not meet the ESA requirements. Instead, he was deliberately obtuse in his request for PEL.
 I am of the view that even if I were to assume that the Collective Agreement provided a lesser benefit (which I have not decided), the Grievor would not be entitled to a paid PEL day for the following reasons.
The Grievor failed to provide adequate reasons for the PEL request. In this regard, it is impossible to determine whether or not the request was for any of the reasons enumerated in the ESA, see Sysco Central Ontario and Teamsters, Local 419 (2013) 240 L.A.C. (4th) 314 (McNamee).
The Grievor failed to provide any reasonable evidence to support the request for a paid PEL day, see Access Alliance Multicultural Community Health Center and UFCW, Local 175 (2012) 114 CarswellOnt 17349 (Chauvin).
The ESA provisions provide for only two paid PEL days for the enumerated situations.
The Grievor had already taken more than two paid days off for sickness and bereavement. Therefore, assuming without deciding that the ESA applied, the Town complied with their obligations by granting the Grievor a leave without pay, see IKO Industries Ltd., supra, affirmed (2012) 2012 ONSC 2276 (CanLII), 294 O.A.C. 328.