Mental Health Leave in Ontario: Employee Rights and Obligations

Mental Health Leave in Ontario (Introduction)

In this post, you’ll learn what mental health leave in Ontario means, when you can take one, your rights and obligations when you take one, and potential sources of financial support should you need to take one.

Remember, it’s always best to speak with an employment and disability lawyer if you’re considering taking leave from work. Your decision on the best course of action can change drastically based on the legal specifics of your case.

Disclaimer: The information in this post and everywhere else on this website is for general information only. It is not intended to provide legal advice. No lawyer-client relationship is created by accessing or otherwise using Ertl Lawyers’ website or communicating with a lawyer or staff member. You can contact one of the leading Toronto employment lawyers at Ertl Lawyers if you need legal advice. We’re more than happy to speak with you.

What is Mental Health Leave? How Long Is It?

Ontario does not have a specific leave for mental health and wellness concerns. Instead, in Ontario, the Employment Standards Act (ESA) provides for at least three unpaid days off each calendar year as “sick leave” due to personal injury, illness or a medical emergency. The reason for your illness or injury does not have to be work-related, and you are still entitled to sick days even if your injuries are self-induced.

Moreover, suppose the reason for your mental/sick leave relates to another recognized leave of absence (for example, bereavement leave, critical illness leave, or family medical leave). In that case, you may be able to “combine” the leaves to extend your overall time.

Notably, some employers offer more support for mental health concerns than the minimum under the ESA. This might include specific mental health policies, paid time off, and benefits packages that include insurance coverage for physical and mental health disabilities.  This information will be in your employment contract, employee handbook (or collective bargaining agreement in a unionized workplace).

Lastly, the ESA contains special rules and exemptions relating to mental health / sick leaves for specific occupations. For example, for some occupations, taking sick leave may not be permitted if (in the circumstances) it is considered professional misconduct or a dereliction of professional duty. Occupations with special rules  include:

• EMS, healthcare and health professionals.
• Manufacturing, construction and mining workers.
• Hospitality services and sales employees.
• Transportation services workers.
• Agricultural, growing, breeding, keeping and fishing workers.
• Landscaping and residential building service professionals.
• Government employees.

You can learn about the rules regarding leaves and other employment rights for these occupations on this Government of Ontario page.

Mental Health Leave Rights in Other Provinces and Federal Workplaces

Other provincially-regulated workplaces may have different laws regarding mental health and sick leave. The Canadian Labour Congress has compiled the minimum requirements for sick leave in each province and territory with links to each one’s employment rules on their Sick Leave Across Canada page.

Federally regulated employees, such as those who work for airlines, banks, the military and the Canadian government, can find their rights regarding mental health and sick leaves in the Canada Labour Code, their employment contract or their collective bargaining agreement.

At the time of this writing, the Canada Labour Code provides five days of leave in a calendar year for sick leave or leave related to the health or care of family members. It also stipulates that an employee is entitled to up to three paid days of related leave after three months of continuous employment.

When Can You Take Mental Health Leave From Work?

Left untreated, workplace and other stress can build over time and contribute to or cause mental illness. It’s best to be proactive, seek help and consider taking some time off of work if you begin to feel overwhelmed or start noticing other warning signs such as:

• Anxiety.
• Restlessness.
• Irritability.
• Depression.
• Trouble sleeping.
• Excessive worrying or paranoia.
• Feeling unmotivated or a lack of energy.
• Difficulty concentrating.
• Unexplained physical ailments, including flare-ups of pre-existing conditions.

Despite progress, admitting the need for mental health time off to an employer is still challenging due to career fears.

If you are uncertain about how to inform your employer that you need to take a mental health leave or feel intimidated to do so, it is advisable to consult an employment and disability lawyer. These lawyers have extensive experience dealing with all types of employers and can guide you on requesting a mental health leave, protecting your rights, and accessing your entitlements during your leave. It is always better for you to seek professional advice if you need help dealing with such a sensitive matter.

Your Rights Regarding Mental Health Leave in Ontario Under the ESA

Sick leave is legally protected, meaning you can’t lose your job for taking a mental health leave or asking about sick days. It’s also against the law for an employer to threaten or penalize you for taking a mental health leave. If they do, speak to an employment lawyer right away.

Your Rights Regarding Mental Health Leave Under Ontario’s Human Rights Code.

Moreover, it’s realistic to expect that you may need more than three days to address a mental health concern. The Ontario Human Rights Code places a duty to accommodate employees with physical and mental health disabilities on employers up to the point of undue hardship. This can mean providing you with a longer unpaid leave for physical or mental health conditions or modified duties, hours or working conditions.

The Code prohibits employers from treating mental and physical health conditions differently.

Your Obligations Regarding Mental Health Leave in Ontario Under the ESA

Obligation to Provide Notice To Your Employer

You’ll need to notify your employer as soon as you know you must take sick/mental health leave. Ideally, you should give your employer notice before you go on leave, but you are still entitled to a mental health leave if you tell your employer after starting it. The notice can be given verbally and does not have to be in writing, although keeping a ‘paper trail’ or written record regarding workplace interactions is always better.

Obligation to Provide Doctor’s Note

Generally speaking, an employer can ask you to provide proof or a medical note regarding sick or mental health leave when it is reasonable, such as when an employee has a history of absenteeism or the leave requested is longer. The note must be from a recognized healthcare provider like a doctor, nurse practitioner or psychologist.

That being said, however, an employer only has a right to certain information:

• The date the healthcare provider saw you.
• If you were seen by the healthcare professional who signed the note in person.
• The expected length of the mental health/sick leave.
• Information that will help them provide you with workplace accommodations.

An employer is not entitled to know the diagnosis (i.e., your medical condition) or what kind of treatment you are receiving.

Financial Support During a Leave for Mental Health Disabilities

Financial stability is a significant concern for people who feel they need to take a mental health leave from work, especially an extended leave. Fortunately, many employers provide benefits as part of their employee compensation packages. This can include paid sick days and coverage from a private insurance company for short-term and long-term disabilities.

1. Insurance-Provided Disability Benefits

If you’re covered by a short- and/or long-term disability policy, you may be eligible to receive income-replacement benefits for longer mental health or other disability leaves. Rules regarding eligibility, the percentage of your covered pay and the length of time you receive benefits are all specific to your policy. Generally speaking, a physical or mental health condition must render you “totally disabled” from performing the fundamental aspects of your work to qualify for STD or LTD benefits.

Unfortunately, insurance companies routinely deny legitimate claims for benefits, especially when it comes to mental health and disability claims. It usually takes hiring a disability lawyer and threatening the insurance company with a lawsuit before they will pay the benefits to which an insured is entitled.

If your employer doesn’t provide benefits, there are government programs that offer financial support for people living with mental health and other disabilities who are unable to work.

2. Federal and Provincial Financial Support for Long-Term Mental Health Leave

Other resources for disability-related financial support include:

• Employment Insurance (EI) sickness benefits.
• Canada Pension Plan (CPP) Disability Benefits.
• WSIB benefits if your mental health leave is based on a workplace incident.
• The Ontario Disability Support Program (ODSP).

A Final Thought on Mental Health Leave

If workplace harassment or unilateral changes made by your employer to your employment contract contributed to a mental illness, speak to an experienced employment and disability lawyer. You may be entitled to compensation based on constructive dismissal when continuing to work at your current workplace has become impossible or impractical.