Navigating Recent Changes to the Canadian Employment Standards Act

As employment laws continue to change and evolve, it’s important to stay updated on legislative changes. Recent updates have been passed regarding a number of provinces’ Employment Standards Act (ESA) that affect several areas of employment, including how wages are paid and job posting rules. These changes are designed to improve employee rights and simplify employer responsibilities, which means HR policies and practices may need to be updated. This article highlights the main changes and their impact, helping you understand and apply the new standards. Your Cowan Return to Health team will continue to monitor future changes and provide updates, including guidance on any changes required to absence and disability policies.

Quebec

Bill 68, October 9, 2024
Implications for Employers with Disability Plans and Sick Employees

Officially titled “An Act mainly to reduce the administrative burden of physicians.” This legislation aims to streamline healthcare processes and reduce unnecessary medical appointments, but it also introduces significant changes for employers, particularly those managing disability plans and dealing with sick employees.

"The bill amends the Act respecting labour standards to prohibit an employer from requiring a document attesting to the reasons for an absence, in particular an absence owing to sickness, including a medical certificate, for the first three periods of absence not exceeding three consecutive days taken annually. The prohibition also applies to employers whose employees governed by the Act respecting labour relations, vocational training and workforce management in the construction industry are entitled to absences of the same nature. In addition, no employer may require a medical certificate if an employee is absent to provide care to a child, a parent or a person for whom the employee acts as a caregiver."

Key changes

Medical certificates for absences: Employers can no longer request a medical certificate for the first three periods of absence not exceeding three consecutive days within a 12-month period.^1,2 It should be noted that the calculation of this period starts from the first absence of the year and not from January 1. This applies to absences due to sickness, organ or tissue donation, accidents, domestic violence, or sexual violence.³

• For absences related to family obligations, employers cannot ask for a medical certificate for any of the ten days of absence provided under the Act.⁴ Effective: January 1, 2025.

Impact

Administrative adjustments and managing absenteeism: Employers will need to revise their policies and practices to comply with the new requirements. This includes updating absence management protocols and ensuring that requests for medical documentation aligns with the new legal standards.⁵

The inability to request medical certificates for short-term absences may challenge employers in managing and verifying legitimate sick leaves, however employers still have the right to request documentation in situations that are beyond the first three periods of absence, or exceed three consecutive days. Employers will need to rely on other methods to monitor and address potential abuse of sick leave policies.⁶ Engaging a third-party absence and disability provider to implement a managed program and policy to help to manage absences beyond the first three period of absence.

As most disability policies have a waiting period before disability benefit payments begins (for example a 3, 5 or 7-day waiting period), this change will not impact many policies. Employees in these cases will still be required to have claim forms filled out if they miss more (or are expected to miss more) than three days (or the equivalent of their benefit qualifying period), including providing supporting medical evidence based on the terms of any absence or disability policy.

Uninsured Employee Benefit Plans — Bill 68 prohibits insurers or administrators of uninsured employee benefit plans from requiring medical services* in order to obtain:

• Reimbursement or payment for services from a health or social service provider; reimbursement or payment for a technical aid.⁷ Effective: Date to be determined.
• Prohibits insurer or benefits providers from dictating the frequency in which an employee is required to attend medical appointments in order to maintain disability benefits. This means that the frequency of medical appointments will be determined solely by the attending physician,⁸ not the insurer or benefit provider. Effective: April 9, 2025.

Impact

Disability plan administration: For employers with uninsured disability plans, the prohibition on requiring medical services for benefit maintenance will necessitate changes in how these plans are administered. Employers must ensure that their plans do not include clauses that contravene the new regulations.⁹

*The Act does not define the term “medical service,” as the legislature intended it to be interpreted broadly to include, in particular, diagnostic, preventive and treatment services.

• The term “service provider in the field of health or social services” has been chosen over “health professional” in order to extend the scope of this provision to services provided by professionals not covered by the Professional Code, such as kinesiologists and massage therapists.
• Finally, the term “technical aid” covers canes, compression stockings, eyeglasses and crutches. For example, people requiring technical aids (canes, crutches, etc.) will no longer need medical papers for reimbursement. The patient will no longer need a doctor’s prescription to be reimbursed for a visit to a physiotherapist, among other things.

Some disability providers or employers may have required employees be seen by a doctor or treatment provider at defined intervals, i.e., every three weeks. This is not a standard part of most disability practices or policies. The insurer, or case manager, will often work with the employee and physician directly to ensure the request for medical remains appropriate and relevant. This includes allowing the treatment provider to dictate treatment frequency as long as the claimant is under ‘active and appropriate treatment.’ This policy isn’t expected to be put into law until 2027, however it is important for employers to review their disability policies, including their absence and disability providers practices, to ensure they do not contravene these new changes.

Potential Penalties

Non-compliance with the new provisions can result in significant penalties, including fines up to $1,000,000.¹⁰ Employers must be diligent in updating their policies to avoid these penalties.

Bill 68 represents a significant shift in how employers in Quebec manage employee absences and disability plans. While the goal of reducing the administrative burden on physicians is commendable, employers must navigate these changes carefully to ensure compliance and maintain effective absence management strategies. Employers should proactively adjust policies and staying informed about the new requirements.

This information is considered to be updated as of November 21, 2024.

Ontario

Bill 190, October 28, 2024
Ontario Working for Workers Act

Ontario’s recent enactment of the Working for Workers Five Act, 2024 introduces several significant changes aimed at enhancing worker protections, supporting frontline staff, and encouraging more women to enter the skilled trades.^11,12 As an employer, it is essential to understand these changes and their implications.

Key changes

The new legislation includes measures such as:

• Putting patients before paperwork and reducing the paperwork burden for healthcare professionals by prohibiting employers from requiring a sick note¹³ from a medical professional for a worker’s job-protected sick leave under the Employment Standards Act (ESA).

Impact

• Sick leave and doctor notes: The act introduces regulations preventing employers from requiring a sick-note from a medical professional for a job-protected sick leave under the ESA. Most employees in Ontario are now entitled to up to three sick leave days of unpaid job-protected leave each calendar year, once they have worked for an employer for at least two consecutive weeks. An employee who missed part of a day to take the leave would be entitled to any wages they earned while working. Employers are not prevented from asking for sick notes under reasonable circumstances.
   
  As per the bill, “if an employment contract, including a collective agreement, provides a greater right or benefit than the sick leave standard under the Employment Standards Act (ESA), then the terms of the contract apply instead of the standard” (3 days). This means that if an employer has a disability policy, often the policy provisions would apply before the ESA standards.

• • As an employer you still have the right to ask for medical notes for reasonable circumstances. “….reasonable in the circumstances will depend on all of the facts of the situation, such as the duration of the leave, whether there is a pattern of absences, whether any evidence is available and the cost of the evidence.”
  • More information can be found here: https://www.ontario.ca/document/your-guide-employment-standards-act-0/sick-leave.
• Lowering the required duration of service for presumptive WSIB coverage for primary-site skin cancer from 20 years to 10 years for firefighters.¹⁴ Ensuring wildland firefighters and investigators receive the same coverage for occupational cancers, heart injuries, and PTSD as municipal firefighters.¹⁵
• Mandating menstrual products on larger construction sites and cracking down on virtual harassment to support women in the trades.¹⁶
• Increasing fines for violations of the Employment Standards Act and requiring employers to disclose the existence of vacancies in job postings.¹⁷

Impact

Consistency in coverage and enhanced worker protections: The Act’s provisions primarily focus on expanding protections and benefits for specific worker groups, such as firefighters and women in trades. These changes do not alter the fundamental criteria or processes for evaluating and approving disability claims under a private STD or LTD policy, however under WSIB legislation claims for primary-site skin cancer will now be accepted earlier. Employers should be aware of these changes.

Expanded definition of workplace harassment: The definitions of workplace harassment and workplace sexual harassment have been expanded to include harassment that occurs in a workplace virtually through information and communications technology.

Administrative procedures: The Act introduces new requirements for employers, such as maintaining clean and sanitary washrooms and new requirements around job posting and interviews.^18,19

The impact on absenteeism and disability claims

Despite these comprehensive changes, the core processes for handling disability claims should remain unaffected. Ontario’s Working for Workers Five Act, 2024, represents a significant step forward in worker protections and support and introduces several changes required as an employer.  Employers should update their sick leave, remote work and health and safety policies to reflect the changes, in addition to updating your hiring and recruitment processes.

Many of these changes do not change the overall framework or requirements of processing or managing a disability claim and as a result most disability policies or provisions should not require changes at this time.

Proposed legislation – pending - Working for Workers Six Act

The Ontario government is introducing the Working for Workers Six Act, 2024. If passed, the act has a set of regulatory proposals and proposed policy actions. A number of the changes within this act will have an impact on employers and employees. It is important for each employer to review these proposed policies and consider any changes that may be required. We have outlined two proposals within the act that if passed, will impact an employer’s absence and attendance policies:

• Introducing a 16-week job-protected leave for adoptive parents and parents through surrogacy under the Employment Standards Act, ensuring they have time to welcome their child. This aligns with federal changes for EI benefits for adoption.
• Establishing a new 27-week long-term illness leave for employees with serious medical conditions, such as cancer or multiple sclerosis, allowing them time to recover without job risk. This would be one of the longest provincial leaves in Canada.

Impact

Cowan will monitor this act and the proposals and provide an update on the legislative rules, processes including implications and impacts on absence and attendance policies, disability policies and practices and sickness or EI benefits.

For more information you can read the full press release here:
https://news.ontario.ca/en/backgrounder/1005404/working-for-workers-six-act-2024.

If you have any questions on the impact on these changes, or proposals on your disability or absence policies, please connect with your disability services provider, or consultant.

This information is considered to be updated as of November 28, 2024.

Summary

Contracting with a third-party absence and disability provider and consultant like Cowan Benefits Ltd. is a great way to ensure employers are managing their absence and disability claims in accordance with best practice and policy legislation.

Several other provinces are also in various stages of consultation surrounding expanded job protected sick leaves beyond current levels. It is more important than ever for employers to have defined absence and sick leave policies that consider changes to provincial ESA job protected leaves.

If you have any questions on the impact of these changes to your disability or absence policies, or wish to connect with us, please visit us at https://www.cowangroup.ca/home/group-benefits/health-disability-management/.  

We will continue to monitor these legislative changes and provide updates as required.

Sources

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13. Ontario Helping Family Doctors Put Patients before Paperwork. Retrieved from URL. ↵
14. Ontario’s Fifth Working for Workers Act Receives Royal Assent. Retrieved from URL. ↵
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17. Ontario Passes Working for Workers Five Act, 2024. Retrieved from URL. ↵
18. Ontario Passes Working for Workers Five Act, 2024. Retrieved from URL. ↵
19. Your guide to the Employment Standards Act: Sick Leave. Retrieved from URL. ↵