The employment landscape in Ontario has been altered by a series of legislative amendments to the Employment Standards Act, 2000 (the “Act”) and other statutes. The Working for Workers Six Act, 2024, introduces a new job-protected leave for up to 27 weeks for long-term illness that will require employers to radically reassess their medical leave management and return-to-work policies and processes.
As of June 19, 2025, an employee qualifies for long-term illness leave without pay if:
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The employee has been employed by an employer for at least 13 consecutive weeks;
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The employee will not be performing the duties of the employee’s position because of a serious medical condition; and
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A qualified health practitioner (defined only as a physician, registered nurse, or a psychologist) issues a certificate that states the employee has a serious medical condition and the certificate sets out the period the employee will not be performing the duties of the employee’s position because of the serious medical condition.
No Definition of “Serious Medical Condition”
Notably, the main criterion for the leave is a “serious medical condition”. This term is not defined in the Act and will likely be a source of considerable dispute in medical leave management. The only guidance provided by the legislation is that a serious medical condition may be chronic or episodic, however this provides even less clarity as to what a “serious medical condition” actually is.
The lack of clarity will pose difficulties for human resource departments in assessing medical leave management obligations although it is reasonable to expect that (1) adjudicators will likely defer to the opinion of the qualified health practitioner and (2) will apply broad interpretive principles to the definition of “serious medical condition”.
The bottom line for employers is that their assessment may not be the same as an adjudicator’s assessment, so employers should tread carefully in making determinations and do so under the guidance of expert employment counsel. That said, this does not override an employer’s obligation to engage in the duty to inquire and the right to seek further medical evidence if appropriate.
The Problem of “Qualified Health Practitioner”
The legislation defines a qualified health practitioner as a physician, registered nurse, or a psychologist. It is important for employers to only accept certificates from these designated health professionals. Often, employees will submit medical notes from chiropractors, physiotherapists, optometrists, dentists, and social workers, amongst others. Employers should not accept medical evidence from any health professional except the three professionals outlined in the Act.
Operational Management and Role Coverage
The impact of an employee who takes a sudden leave of absence can be devastating to unprepared employers. This is now further complicated by the long-term illness leave, as an employee may be gone at any moment for an extended period of time with job protection. Employers should have contingency plans in place for critical employees and the coverage of their duties. Many examples of medical management failure and accompanying litigation come from employers who fail to plan for such contingencies and ignore the law in favour of business continuity.
Practical Steps for Employers in the New Regime
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Revise sick leave policies to integrate the new leave. Provide explicit guidance on notice requirements and supporting medical documentation in the policy. Consider creating a standardized certificate for long-term illness leave requests.
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Set out explicit protocols for communication during the leave. Define who should be the point of contact and how frequently you will check in. Respect privacy but maintain necessary contact.
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Have a clear understanding of return-to-work policies and processes and discuss applicable accommodation before the employee returns to work.
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Have a clear communication strategy when dealing with a sick employee. Use empathy and acknowledge the difficulty of the situation. Provide reassurance that their job is protected and that the employee can focus on their health rather than on issues related to work.
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Manage issues of operational planning. Develop a strategy to cover an employee’s duties before they take leave, especially if their function is mission critical.
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Train managers on the essentials of human rights law and the duty to accommodate. Well-meaning but misguided managers can be a significant source of litigation if they go rogue.
An employer’s best defence is to develop robust policies and procedures that respect the employee and their privacy while maintaining compliance with the law. A failure to plan for long-term absences is a leading cause of business decision making that, while potentially beneficial to the business in the short term, can have catastrophic liability consequences in the long term, even without a nefarious intent.
If you have any questions regarding these legislative changes or, if you require assistance with the review and drafting of your company’s sick leave policies, please do not hesitate to contact us for expert legal advice and guidance.
