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Stress Leave| Author: Ian Hurley, Employment Lawyer.
Stress Leave on the Rise
A globalized economy, technology with instant 24/7 connectivity and increased productivity expectations make workplaces operate at lightning speed. It demands a lot out of workers. As if that was not enough, the COVID-19 pandemic has made things exponentially worse for many. Some are working from home while also tending to kids who are attending school on-line. Others have to get to work with hapless commutes on public transit, where maintaining physical distance is difficult or impossible. Frontline medical workers, who have been reporting anxiety and burnout for months are now in the throes of a seemingly uncontrollable second wave. And for many, personal problems like a death in the family, an ill relative, marital strife or debt problems have simply tipped them over the edge. It is no wonder why employees are taking stress leave with growing frequency.
Personal Emergency Leave (PEL)
If you are feeling overwhelmed, anxious or depressed, the first thing you will experience is lower than normal productivity levels. You may fall behind on deadlines, make mistakes and simply not cope. This can happen to anyone.
In Ontario, all employees are entitled to 8 unpaid days off for personal emergency leave (PEL). However, your employer may offer this as a paid leave, and you should consult your employee handbook or HR department for the details. Consider tapping into these entitlements right away because your health, mental or physical, should always come first. For many, a few days away from a demanding job to tend to your self-care might be all you need to get back into the swing of things.
Requesting Stress Leave
Asking for stress leave depends totally on the culture of your organization. In 2017, Madalyn Parker, an employee of Olark Live Chat made the news. She was exhausted, needed a break and wrote to her coworkers explaining this. Her CEO replied, thanking her for her openness about this taboo subject. Madalyn posted this exchange on Twitter and what resulted next was a media storm that made the story go viral. Why? Because this was an admirable example of a workplace that promotes mental health awareness. The CEO encouraged her to take advantage of their sick leave entitlements.
As employment lawyers with over 35 years in the business, we, unfortunately, know this is not the norm. Most workplaces hardly consider the impact of workloads on employee mental health. And many have completely ignored the increased stress that the pandemic has injected into workplaces and work functions. In fact, the worst employers are discriminating against staff members who suffer from anxiety and depression, exacerbating the nature of the illness.
If your workplace is anything like Olark Live Chat, asking for stress leave will be straightforward. However, if you feel it will cause stigma, judgment and repercussions, then you should simply request the time off without an explanation. You do not have to disclose your mental health needs to your employer.
Short Term Disability for Stress Leave
If your physician diagnoses you with mental health illness then you may require several weeks off from work. Employees with private health coverage from work should look into the Short-Term Disability (STD) benefits plan. Stress leave due to anxiety and depression are the top reasons for STD claims, but insurance companies deny most of them. You will, therefore, benefit from a one-hour consultation with us before you submit your STD application. We will review it for accuracy to maximize the chance of an approved claim. Insurers often deny applications because the qualifications of the person who filled out your form do not meet their standards. And this is particularly true for stress leave applications related to anxiety and depression. We can offer guidance to mitigate all of this.
Denied Claims for Stress Leave
If you have already had your disability claim denied, then you will likely require our help. Insurance companies sell disability policies for the specific purpose of tiding you over with financial support when you fall ill. Consequently, the law considers them peace of mind contracts. They are an enforceable part of your employment agreement. We can review your claim to ensure it was not denied unfairly, and guide you through the appeal process.
Administrative Services Only
Also, claimants should be aware of another salient point. To keep STD premiums cost-effective, many employers opt to engage insurance companies in an administrative capacity only. Consequently, your employer actually pays the benefit but uses the insurance company as an arms-length and supposedly independent screener of your application. You might require legal intervention to ensure the insurance administrator does not breach privacy rules and divulge confidential medical information to your employer. And we might also need to ascertain whether your employer is the party engaged in frustrating and harassing you by illegally withholding the benefits you rightfully deserve.
WSIB
If you do not have access to STD benefits, consider a WSIB claim, instead. In January 2018, the Workplace Safety and Insurance Board upgraded its policy to grant WSIB benefits for chronic mental stress that arises out of, and because of your employment. Arguably, incidents of extreme harassment and bullying at work that lead to a diagnosis of mental illness could meet the WSIB criteria. However, stress caused by the issuance of a Performance Improvement Plan (PIP), for example, may not count.
Employment Insurance Sickness Benefits
If you neither receive private health care coverage nor qualify for WSIB, you may be eligible for EI Sickness benefits offered by the federal government. Contact your local Service Canada office for details.
Stress Leave & Harassment
Without a doubt, stress leave can strain some employment relationships. In our estimation, this is often the start of a very long battle between employees and employers. The problem often gets magnified after you return to work. Regardless of whether you present an accommodation plan from your doctor or not, your supervisor may start treating you like “damaged goods”. Some will compare you to the person who filled in for you during your absence. They may see an opportunity to clean up shop. This is when bullying, harassment and discrimination often start.
Management may try to sabotage you by purposely subjecting you to more work than you can handle. They may exclude you from meetings or gossip about you. All of this can culminate in a toxic work environment, which in extreme situations, causes the illness to return or get worse. Such behaviours are against the law. Contact us at the first signs of harassment. We will coach you through difficult situations to ensure the behaviour ceases. We can even intervene to educate your employer about the law.
Ending The Employment Relationship
If the employment relationship has soured beyond repair, then we can negotiate a fair severance package, commensurate with your circumstances. Sometimes, this is a better solution for your mental health. Leaving a job with a financial package will buy you time to find better employment elsewhere.
If your situation got so bad that you quit in frustration, then arrange a consultation with us promptly. We can evaluate whether you have grounds for a constructive dismissal lawsuit.
The Law Protects You
Fortunately, Canadian laws provide strong protections for employees experiencing mental health discrimination at work. Our courts have held employers liable for exemplary damages when they intentionally inflicted mental distress on employees.
With the 2017 case Saadati v. Moorhead, the Supreme Court of Canada advanced the law for mental injury claims much further than ever before. They ruled that claimants no longer require proof of a recognized psychiatric illness to claim damages for mental injury. Instead, they placed emphasis on symptoms and their effects, rather than on a mental health diagnosis. The Saadati decision did away with the need for expensive expert witnesses to advance a claim for mental injury. This was a welcome development for Canadian workers.
Reducing Incidents of Mental Health Leave
Employee mental health is an issue all workplaces should get a grasp on, especially during COVID-19 times. It is the leading cause of absenteeism and reduced productivity. The best way to manage this is to prevent it from setting in, in the first place. Workplaces can ensure all employees are properly supported in their jobs; they should nip toxic workplace culture in the bud and positively discuss employee mental health, just like Madalyn Parker and her CEO did.
Canadian laws are evolving to reflect our understanding and appreciation of employee stress and mental health. As experienced employment and disability benefits lawyers, we will continue to follow and report on these positive developments.
About the Author
Ian Hurley, B.A. LL.B. is an employment lawyer and partner at Lecker & Associates. If you’ve ever had your disability claim denied, he is the employment lawyer you will want on your side.
Lecker & Associates is a team of Toronto employment lawyers with 35+ years of experience helping employees of Ontario qualify for short-term disability claims. We have also represented employees with challenges that ensue with their employers. Contact us for a consultation about your situation. The initial assessment is free.
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