Simply stated, you CAN’T count PEL or any other forms of leave to which employees are entitled under the ESA as absences–not even non-culpable absences. Nor can you use such leaves as triggers for non-culpable absence management review. If you do, you’re penalizing the employee for exercising their ESA rights and that’s a violation.
The above is true even if employees voluntarily agree. The rule is that employees aren’t allowed to bargain away their ESA rights even if they want to–unless the contract/collective agreement gives them a more generous entitlement.
While I haven’t seen or heard of any employers adjusting their triggers for PEL, what I HAVE seen are attempts to substitute floater days or other paid days off for the first 2 days of PEL, which are now paid under Bill 148. This is a very dicey proposition for the same reason that counting PEL days as absences is (as explained above). Here’s a write-up of a brand new OLRB case dealing with the issue.
Employer Can’t Force Employees to Swap “Floater Days” for Paid PEL Leave
On Jan. 1, 2018, Ontario changed its ESA laws (Bill 148) to make the first 2 days of personal emergency leave (PEL) paid. After the change took effect, 2 union employees took days off to deal with personal illnesses but didn’t get PEL pay for the days. The union grieved but management contended that the 2 days of paid PEL guaranteed by the ESA didn’t apply because the collective agreement provided a “greater entitlement,” namely 3 paid “floater days.” The Board disagreed. Floater days weren’t equivalent to PEL days even though the collective agreement allowed for swapping the former for the latter. But the swap had to be at the employee’s choice and each of the employees in this case said no to swapping PEL days for floater days. So, forcing them to swap thus violated the collective agreement and deprived them of their ESA entitlement to 2 days’ paid PEL leave [Carillion Services Inc. c Labourers’ International Union of North America, Local 183, 2018 CanLII 47110 (ON LA), May 25, 2018].
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Hope that helps. Glenn Demby 203 354-4532
