Effective June 19, 2025, Ontario is introducing a long-term illness leave that offers job protection to employees, for up to 27 weeks, due to a serious medical condition (as defined by their treatment provider). This leave can be taken all at once, or intermittently. For more detailed information about the Employment Standards Act (ESA) changes, please check out our article on the Working for Workers Six Act or Bill 229 from the Legislative Assembly of Ontario.
The introduction of the Ontario Long Term Illness leave necessitates policy and practice changes for employers to ensure compliance. Below are some helpful questions to assist in your preparation.
Of note, there are several provinces (Alberta, Manitoba, and Quebec, with others pending legislation) that already have a long-term illness leaves in place.
What is considered a long-term illness leave (or long-term illness leaves leave)?1
- Who is eligible?
An employee employed by an employer for at least 13 consecutive weeks is entitled to a leave of absence without pay. This includes full time and part time staff.
- What medical conditions are applicable, and what are the key definitions?
There are no defined or specific diagnoses provided within the legislation. It states that a qualified health practitioner* has issued a certificate that;
- (i) states that the employee has a serious medical condition, and
- (ii) sets out the period during which the employee will not be performing the duties of the employee’s position because of the serious medical condition.
The individual does not need to be at significant risk of death to be considered to have a serious medical condition. It can include a condition that is chronic or episodic – and could cover all diagnostic categories
*Who can write this certificate? A health practitioner is defined as a person who is qualified to practice as a physician, a registered nurse or a psychologist under the laws of the jurisdiction in which care or treatment is provided to the employee, or in the prescribed circumstances, a member of a prescribed class of health practitioners.
- How long is the long-term illness leave?
The total amount of leave that may be taken by an employee under this leave is 27 weeks, even if the employee has more than one serious medical condition. If the certificate sets out a period of less than 27 weeks, the employee is entitled to take leave only for the number of weeks in the period specified in the certificate.
The leave can be taken in multiple absence periods. If taken in non-consecutive periods, the leave ends no later than 52 weeks from the first absence as outlined in the initial medical certificate. The amount of leave, combined or in total, cannot exceed 27 weeks.
For an employee’s entitlement under this section, if an employee takes any part of a week as leave, the employer may deem the employee to have taken one full week.
Help your employees live healthier lives.
To assist in better understanding this legislation we have outlined below some commonly asked questions for employers.
- Who decides what type of leave an employee is taking?
Employees are responsible for telling their employers the reason they require a leave and what type of leave they require. The employer will need enough detail to show the time off work meets the requirements of the leave.
When employees require time off, the employer should ask whether they are taking a leave available under The Employment Standards Act. Employers do not control when employees can take a leave provided by law, but they do control other types of time off work. Employers should advise employees of available income replacement benefits that may be available, such as an STD or LTD policy, if the employee meets the eligibility requirements. It is up to the employee to apply and advise their employer of the leave type they will be taking.
- Is the long-term illness leave a paid benefit?
No, the long-term illness leave is a job-protected ESA leave. Employees may apply for employment insurance or an apply for benefits under an STD or LTD plan for income replacement (as available by the employer). STD and LTD disability income replacement and employment insurance benefits, while related, are not connected to eligibility for the new long-term illness leave. Employees can also choose to apply for employment insurance benefits if they are not covered under an STD or LTD plan.
- If an employer offers an STD or LTD plan and an employee chooses not to apply, opting instead for the new long-term illness leave, can the employer require the employee to apply for short term disability (STD) or long-term disability (LTD) instead?
No, employers cannot require an employee to apply for STD or LTD as these products remain optional benefits. While the ESA illness leave is related to a private plan in some instances (as both offer income replacement), each leave policy has its own set of eligibility and entitlement criteria. STD and LTD plans are often more generous in terms of income replacement options but may have stricter criteria for approval. If an employer offers STD or LTD benefits, they should make the employee aware of these benefits and ensure the employee has the necessary application forms.
Of note, the medical information supplied as part of the STD or LTD claim may form the basis for evidence for the long-term illness leave (or employment insurance), as long as it; (i) states that the employee has a serious medical condition, and (ii) sets out the period during which the employee will not be performing the duties of the employee’s position because of the serious medical condition.
- What if it is not a serious medical condition?
It is up to the employee health practitioner to define if the employee’s condition is considered to be serious. For employees that do not have serious medical condition – illness or injury – they may be eligible for STD or LTD benefits, or employment insurance, but would not meet the requirements for the long-term illness leave.
- Could an employee have an open STD, or LTD, claim open at the same time as an ESA long term illness leave?
Yes. However, in practice, an approved STD or LTD claim may be approved longer than the long-term illness leave. As such an employee on an approved STD or LTD claim may not need to apply for the ESA long term illness leave as the absence would be managed until the STD or LTD policy.
- If the employee is declined for an STD or LTD claim and they submit a request for the long-term illness leave, would an employer track the absence from the first date absent to determine the eligibility and time remaining (27 weeks)?
Yes. The absence duration is tracked from the date on the initial doctor's certificate. In the case of the declined STD or LTD claim, the start date of the long-term illness leave would go back to the date listed on the initial illness certificate.
- If an employee is out on a medical leave of absence before June 19, 2025, are they eligible to apply for the long-term illness leave?
Yes, this new leave could be accessed by them even though the employee had a absence in the immediate past and may have not returned to work.
- Once the leave is requested, and allowed, is an employer or third-party absence management provider allowed to “case manage” (request medical information, interview an employee, obtain restrictions and limitations, propose return-to-work plans, etc.) to assist in managing an employee’s absence and return to work?
No, case management or adjudication is not allowed. The employee is only required to participate to the minimum requirements (medical certificate requirements and employment tenure eligibility).
- If an employer is not allowed to request restrictions and limitations (or a third-party provider), how does this new ESA leave tie in with an employer’s duty to accommodate?
It does not. The qualification to receive the leave is just that a qualified health practitioner certifies that there is a serious medical condition, and how long the employee will not be performing their duties because of it. An employee is not required to submit restrictions and limitations, and an employer is not allowed to ask. Employers are permitted to request a copy of the illness certificate.
- What if an employer can accommodate – or feels they can. Is the long-term illness leave seen as a full absence away from the workplace/occupation?
Employers are not allowed to request – and employees are not required to supply – more evidence than the legislation dictates. The exception to this is that once a return-to-work date is known, then an employer can ask the employee about their return-to-work plans, date, and if any accommodations are required. If accommodations are required, an employer can then ask the employee to submit any restrictions and limitations from their treatment provider. It is important to note that employees are not required to submit this information to an employer if an ongoing absence is expected. The employee would only be required to provide an updated certificate from their treatment provider if the prognosis date of the initial certificate is past or expiring, and only if the employee has eligible time remaining (27 weeks total).
- Is there a ‘definition of disability’ like what is provided under human rights (or an STD or LTD policy)?
No, just the treating practitioner has outlined that a serious medical condition exists and has provided a prognosis for the absence duration.
- Do the other employment standard rules apply?
Yes, all other ESA employment rules still apply. This applies to areas like reinstatement of employment and continuation of benefits (as per ESA and/or collective bargaining agreements).
- What if an employee was out of the country when an injury/illness occurs? Are they still eligible for this ESA long-term illness leave?
Yes, in some instances, an employee that has left the country but suffers an injury or illness while away would be eligible as long as they provide the necessary documentation and meet the leave requirements.
- Can an employer hire or outsource the management of these leaves to a provider like Cowan Return to Health?
Yes, however, third-party providers like Cowan Return to Health required to only manage these absences in accordance with the ESA leave eligibility and rules. Third-party providers will not be able to adjudicate, or case manage in the same way as an STD or LTD policy allows. An employee will only be required to participate to the minimum standards.
- Will there be a new form for the doctor to complete for this ESA leave like the one that currently exists and can be used for other ESA leaves?
Not at this time.
- If the employee has LTD coverage, should they be applying for LTD even if on an ESA illness long leave?
Yes, however as noted, this is not required. Employers should ensure they are making their employees aware of their STD or LTD policy offering, eligibility, timelines for submission, and the application process
- What if there are questions around the legitimacy of the leave? How can this be investigated or challenged (by the employer or a third party like Cowan)?
Only in exceptional circumstances can eligibility be questioned or denied if the employee has supplied the necessary documentation and is an eligible employee based on the employment tenure. These circumstances should only be considered when there is overwhelming evidence that is already known and that would contradict the provided medical information. It is best to consult with your employment legal counsel denying an eligible leave.
- Can an employee take multiple ESA illness leaves over the course of their employment?
Yes, if they meet the eligibility requirements and are not taking more than 27 weeks in a 52-week period, an employee could be entitled to multiple ESA illness leaves. The long-term illness leave in Ontario does allow for intermittent time off work if the employee meets the eligibility criteria for each subsequent absence and does not exceed the allowance periods.
- How are the intermittent periods of absence tracked?
It will be up to the employer to track time taken and time remaining.
- What can an employer do to better manage this process?
Ensuring a robust absence and management tracking and reporting process is key to ensuring these absences are managed in accordance with legislation. It is important, as with all ESA leaves, to ensure employers are also collecting the necessary evidence requirements from the employee for each leave period.
Hiring a third-party provider like Cowan Return to Health® can assist in removing the administrative challenges this new leave may present. While we are not able to offer a service with the same scope of work as our STD or medical leave of absence (MLOA) product, Cowan Return to Heath can assist in the eligibility assessment process, including ensuring appropriate medical evidence is supplied, tracking absence days eligible and remaining, and providing reporting to the employer on any balances or dates not eligible. This includes tracking over the 52-week eligibility period. Cowan Return to Health can also assist in the management of any existing STD claims and any transition to the ESA illness leave process as required, including transition to the LTD provide (as eligible).
For Existing Cowan Clients
- How does this new leave impact my existing services with Cowan Return to Health?
For clients that already have our ESA leave of absence services the Long-Term Illness leave will automatically be added to your product selection, as with other ESA leaves. Our leave specialist team will manage these leaves for you and inform you if a long-term illness leave is registered.
- How does this new leaves impact Cowan’s other service offerings such as STD or medical leave of absences (MLOA) claims
STD and MLOA claims can, and should, still be initiated as per an employer’s attendance and absence management policies, if the employee has not requested an ESA long term illness leave. Even in instances where the employee has requested this leave, employers should advise the employee of available income replacement options. As mentioned above, an employee may be eligible for an ESA long term illness leave, if they do not meet the eligibility criteria for STD or MLOA – or choose not to apply.
- Can I add ESA long-term illness leave management as a stand-alone service with Cowan?
Yes. Long-term illness can be added as a stand-alone service or as part of our overall ESA leave of absence management service offering.
If you have any questions on your current service offerings, or impact, please contact us at rthclient.service@cowangroup.ca
In Summary
The new ESA long-term illness leave for Ontario (as with other provinces) presents a challenge for employers in managing employee absenteeism. This statutory leave allows employees to take a leave of up to 27 weeks (in full or intermittently) during a 52-week period due to a serious medical condition - without the need for detailed cooperation or case management from the employer or a third party. Employers are required to track the absence and timing from the initial doctor's certificate, which can be complex and time-consuming. Additionally, employers cannot require employees to apply for STD or LTD instead of ESA leave, which may lead to difficulties in coordinating different types of leaves and ensuring compliance with various policies. In some instances, this might mean that an employee could have an open ESA leave at the same time as an open STD or LTD claim.
As the ESA leave is unpaid leave, it is our belief that most employees will still take the option of applying for an STD or LTD benefit due to the (often greater) income replacement.
Cowan Return to Health can assist in this administrative process of this new ESA leave by managing the eligibility criteria, collecting medical certificates, tracking absence days, and providing reports on dates taken and balances reaming. This ensures employers are compliant with ESA regulations while reducing the administrative burden associated with managing long-term illness leaves.
As always, to ensure compliance with this new leave, it is highly recommended that employers seek guidance with an employment lawyer to ensure alignment of practices, policies, and procedures with this new legislation, thereby providing necessary protection for both the employer and the employee.
As new legislation is passed, the Cowan Return to Health is here to support you as a trusted partner in communication updates and offering services to assist in your absence and disability management needs.
If you have any questions on any of the information provided or are interested in hearing more about absence and disability claims management or engaging us for assistance in managing your leaves please contact us at rthclient.service@cowangroup.ca.
Disclaimer
This information is provided for general advice purposes only and should not be construed as legal advice. Employers are encouraged to consult with an employment lawyer to ensure full compliance with legislative requirements and to address specific situations that may arise. The information herein is intended to assist in understanding the new ESA long-term illness leave provisions but does not replace professional legal consultation.
Employers can also contact the Employment Standards Act at:
Tel: 416-326-7160
Toll-free: 1-800-531-5551
Toll-free TTY: 1-866-567-8893
References1
https://www.ontario.ca/laws/statute/s24041
https://www.ola.org/sites/default/files/node-files/bill/document/pdf/2024/2024-12/b229ra_e.pdf
https://www.ola.org/en/legislative-business/bills/parliament-43/session-1/bill-229/status
