Illness or Injury Leave - Act Part 6, Section 49.1


Contents:

Summary
Text of Legislation
Policy Interpretation


Summary

This section explains under what circumstances an employee qualifies for up to 3 days of personal illness or injury leave.


Text of Legislation

49.1 (1) After 90 consecutive days of employment with an employer, an employee is entitled to up to 3 days of unpaid leave in each employment year for personal illness or injury.

(2) If requested by the employer, the employee must, as soon as practicable, provide to the employer reasonably sufficient proof that the employee is entitled to leave under this section.


Policy Interpretation

Illness or injury leave is an employee-initiated unpaid leave of up to 3 days in an employee’s employment year, based on their starting date. This leave is a statutory entitlement, not something that may or may not be granted at the discretion of the employer.

Illness or injury leave does not carry over from year to year if it is not used during the employment year.

Employers should record the absence as leave without pay and keep a record of the absence.

Subsection (1)

Employees become eligible for this leave when they have been employed for 90 consecutive days.

Subsection (2)

This section contemplates that the need for a leave of this nature can arise suddenly and without warning, so the employee is not required to give the employer a certain amount of advance notice. The employee should advise the employer as soon as they can that they are ill or injured and unable to work. The employee must provide enough information to reasonably satisfy the employer that the employee is entitled to the leave.

Duration of leave

Employees are entitled to up to 3 days off, to be taken if they are ill or injured. Any time taken off on any day (even one hour) qualifies as one day for purposes of this section, unless the employer and employee agree otherwise. (See definition of “day” in s.1 of the Act)

Reason for leave

An employee is encouraged to give notice of their need for leave as soon as they are reasonably able to, to allow the employer to accommodate their absence. Employers are entitled to reasonable proof, after the event, that the request for a leave was valid.

Terms and conditions of employment protected

Section 54 provides that an employer cannot terminate an employee or change a condition of employment without the employee's written consent as a result of a leave under this Part. See also s.56 for an explanation of the effects of leave under this Part on employment and benefit payments. If the employer's business operations have been suspended or discontinued at the time the employee's leave ends, the employer must comply with s.54(2) when operations resume.

In the event of a contravention under this Part of the Act, the director may order a remedy in a determination under s.79(2). The determination will include an escalating monetary penalty, subject to s.98.

Employees covered by a collective agreement

Where there is a collective agreement, disputes respecting the application, interpretation or operation of Part 6 must be resolved through the grievance procedure, not through the enforcement provisions of the Act.


Related Information

Related sections of the Act or Regulation

ESA