中英对照：在疫情期间，雇主必须了解雇员的病假权利

 

 

最近，作为一个组织的义工，我要为该组织雇员的加班费问题制定规则。为此，我得研究《安大略省就业标准法》。此事让我对安省就业规定有了进一步的认识。

 

Recently, I have to establish an overtime controlling procedure for the staff at the organization that I am volunteering as an executive. Through this exercise, I get to explore the legal requirement under Ontario's Employment Standards Act and it turns out to be quite an eye opener.

 

在此之前，该组织的雇员积累了许多“加班”时间。最终，这些“加班”时间无法用光。这是一个令人头疼的问题。因为如果雇员解约离开组织，这些时间必须转为加班工资而在雇员走人之前支付。

 

In the past, the office staff at our organization was “banking” their overtime hours. Eventually, they accumulated many hours and cannot use them up. It becomes a concern as the hours will represent a huge amount if and when the employees leave the organization and they become due at that time.

 

在看了《安大略省就业标准法》第22小节后，这个问题如何解决就很清楚了。法律规定：

 

After reading the Ontario Employment Standards Act Subsection 22, it clears up everything. The Act clearly states that:

 

“加班时间必须在加班后的三个月内补偿给雇员，如果雇员以电子方式或书面形式同意，雇主可以在12个月内补偿。”

 

“Paid time off must be taken within three months of the week in which the overtime was earned or, if the employee agrees electronically or in writing, it can be taken within 12 months.“

“如果雇员在解约前没有得到加班费的补偿，雇主则必须向他/她离开前支付积累的加班费。”

 

“If an employee's job ends before he or she has taken the paid time off, the employee must be paid for all unused banked time.”

 

在12个月内，雇主必须向雇员支付积累的加班费。一般情况下，雇主必须在下一次发工资时支付加班费。我做义工的组织采取了一次性支付雇员加班费，且从现在起按法律规定支付加班费。

 

Taken within 12 months is based on the date when the overtime is “banked”. Otherwise, it has to be paid at the next normal pay period. Our solution would probably be paying off the banked hours one-time and comply with the law from this point going forward.

 

该组织的另一个担心是病假问题。许多公司采取只要主管同意，雇员就可以休病假。这意味着，如果雇员不是经常请病假，主管可以“不用”把雇员休病假的时间记录在案。 相比之下，《就业标准法》对此病假问题写得非常明确。

 

Another concern we had was related to sick leave. Sick leave may be passed off by supervisors as “discretionary” leave in many organizations. This means that if the employee does not exhibit a pattern of such leave in short periods, the supervisor may “forgive” the absences and keep that out of the records. The Employment Standards Act addresses this in a much formal and systematic manner:

 

根据法律，“无论是全职还是兼职，雇员每年可享受三天的无薪病假。雇员可以任选三天，不管其是否干满一年。”

 

“Employees are entitled to up to three full days of job protected unpaid sick leave every calendar year, whether they are employed on a full or part-time basis. There is no pro-rating of the three day entitlement. An employee who begins work partway through a calendar year is still entitled to three days of leave for the rest of that year.”

 

换句话说，如果雇员在12月份进公司，他/她仍可在当年获得3天的无薪病假。通常，雇员休病假之前必须通知雇主。如果雇员在没有通知雇主之前开始休病假，雇员必须在休假后尽快通知雇主。通知不一定是书面形式，口头通知就足够了。虽然要求雇员在请假之前提前告知雇主（或者休假后尽快告知雇主），但雇员不事先请假，他/她也不会失去休无薪病假的权利。

 

In other words, if the employee joins the company in December, he/she is still getting 3 days of unpaid sick leave during that calendar year. Generally, an employee must inform the employer before starting the leave that he or she will be taking a sick leave of absence. If an employee has to begin the leave before notifying the employer, the employee must inform the employer as soon as possible after starting it. Notice does not have to be given in writing. Oral notice is sufficient. While an employee is required to tell the employer in advance before starting a leave (or, if this is not feasible, as soon as possible after starting the leave), the employee will not lose the right to take the leave if they fail to do so.

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如果雇员因个人疾病，受伤或医疗紧急情况而请假，雇主可以“按常理”要求雇员提供（例如医生，护士或心理学家开的）医疗证明 。但是，雇主只能要求这类信息：病假的时间或病假会多长；医护人员何时检查了病人；医护人员是否亲自检查过患者。雇主不能要求医生提供雇员医疗状况的诊断或治疗的信息。

 

An employer may require an employee to provide a medical note from a health practitioner such as a doctor, nurse practitioner or psychologist when the employee is taking the leave because of personal illness, injury or medical emergency if it is “reasonable” to ask for such. However, the employer can ask only for the following information: the duration or expected duration of the absence; the date the employee was seen by a health care professional; whether the patient was examined in person by the health care professional issuing the note. Employers cannot ask for information about the diagnosis or treatment of the employee’s medical condition.

 

安省的《就业标准法》还规定：

 

The Act further states that:

 

雇员不能将未休的三天的无薪病假转至下一个年度。三天的无薪病假不必合在一起休。雇员可以在一天的任何时段休此假。如果雇员在一天的任何时段休此假，雇主可以将其视为一天病假。”

 

Employees cannot carry over unused sick leave days to the next calendar year. The three days of leave do not have to be taken consecutively. Employees can take the leave in part of a day, whole day or in periods of more than one day. If an employee takes only part of a day as sick leave, the employer can count it as a full day of leave.

 

为了执行方便，《就业标准法》规定，病假必须按天算，即使雇员只休了几个小时。此外，安省还对2000年制定的《就业标准法》进行了修订，包括突然患“传染病”的无薪病假。

 

Here, the system is simplified. Sick leave cannot be taken as part of one day. There is a minimum count of one day every time this leave is invoked. Furthermore, the Employment Standards Act, 2000 was amended to include an unpaid, job-protected “infectious disease emergency leave.”

 

因COVID-19疫情而不能上班的雇员可以使用此假期，包括：

 

This leave is available to employees who are not performing the duties of their position for certain reasons related to COVID-19, including:

 

1）被疫情感染而需要隔离

personal illness, quarantine or isolation in specified circumstances

 

2）雇主担心他/她可能会让其他雇员染上COVID-19疫情

concern by the employer that the employee may expose other individuals in the workplace to COVID-19

 

3）因COVID-19疫情雇员要照顾家庭成员，包括学校或幼儿园的关闭

to provide care or support to certain family members for a reason related to COVID-19, including school or day care closures

 

4）旅行限制造成无法上班

4) due to certain travel-related restrictions

 

“传染病紧急假期”可以追溯回2020年1月25日。雇主不能要求雇员提供医疗记录以证明他们有资格请假。

 

The “infectious disease emergency leave.” is retroactive to January 25, 2020. Employers cannot require employees to provide medical notes to prove they are eligible for the leave.

 

雇主必须了解法律并按照法律要求与雇员打交道。不这样做会带来麻烦，在非常极端的情况下，还会造成代价昂贵的法律诉讼。

 

As employers, we must understand the law and deal with our employees in accordance with its requirement. Failure to do so can get us into trouble and in very extreme cases, costly lawsuits.