mental health leave, employee rights

Mental Health Leave: What are Your Rights as an Employee

The last few years have revealed the importance of mental health care in the workplace. Moreover, social awareness for psychological injuries or mental disorders as medical conditions characterized by changes in emotion, thought, or behavior (or a combination of these) has increased as well. Indeed, distress or difficulty coping with daily tasks at work, in the family, or in social situations can be symptoms of mental illness as well. 

Are employees suffering from mental health difficulties entitled to medical leave? What are an employer’s obligations to an employee suffering from mental health difficulties? What happens if an employer fails their obligations to an employee suffering from mental illness? 

This article will answer the above questions by providing an overview of the law surrounding mental health leaves for employees, and what legal liability an employer could suffer for failing to meet their workplace obligations owed to employees suffering from mental illness. You will also learn how an employment and Human Rights lawyer can help. 

Are Employees Entitled to Mental Health Leave? 

There are a variety of relevant workplace statutes when it comes to employee mental health struggles. These are minimum entitlements and obligations, and employers are allowed to implement their own workplace policies that provide better measures for employees suffering from mental health. 

In Ontario, workers have the legal right to take time off work to recover from illness or injury or deal with a medical emergency. An employee who has worked for an employer for at least two weeks in a row is entitled to an unpaid leave of absence or up to three unpaid sick days per year under the Employment Standards Act, 2000 (the “ESA“). This unpaid leave can also be used for mental health issues or stress leave to deal with any mental conditions such as stress, anxiety, or burnout.

Other types of absence from work are also available to employees in Ontario who are protected by the ESA‘s sick leave provisions, including Bereavement Leave, Family Responsibility Leave, Domestic or Sexual Violence Leave, and Crime-Related Child Disappearance Leave. If these kinds of leaves are also related to the mental health of the employee, they may be able to use them to extend the length of their medical leave. 

Employers also must reasonably accommodate employee disabilities to the point of undue hardship pursuant to the Ontario Human Rights Code (the “Code”). Employers are also prohibited from discriminating against employees or retaliating against them for seeking accommodations for their disabilities. For the purposes of the Code, most mental illnesses and even brief periods of mental health struggles are considered disabilities. 

These measures are minimums the employers must comply with for their workplaces. That means they can provide greater benefits through their own unique policies and workplace procedures. Employers should still be mindful that having such policies in place does not mean they are exempt from further accommodations for an employee where reasonably necessary under the Code. 

What Happens if an Employer Refuses to Allow Medical Leave? 

Employers rarely are allowed to deny an employee medical leave so long as the employee makes reasonable efforts to: 

  • Properly inform their employer in writing about their need for medical leave; 
  • Provide an employer the minimal information necessary through a medical practitioner’s note to confirm the medical nature of the leave required; and 
  • Work with the employer where necessary to help accommodate their mental health struggles in the workplace moving forward. 

Employers generally should not deny an employee medical leave without a reasonable and justifiable basis. Even then, it may be prudent to allow the employee to go on medical leave; though employers may not need to pay them until they are able to return to work. Employees typically have access to short-term or long-term disability benefits in such a case. 

If an employer unduly denies an employee medical leave and demands they show up to work anyway, they could face potential legal claims for: 

  • Constructive dismissal
  • Violations of the ESA; and
  • Discrimination and failure to accommodate under the Code

A constructive dismissal claim in this context may entitle an employee to severance entitlements and Human Rights damages. The employee has the alternative option of filing an Application with the Ontario Human Rights Tribunal to seek lost wages and Human Rights damages. 

How an Employment and Human Rights Lawyer can Help 

Whether you are an employee seeking medical leave or an employer facing a legal claim, it is best to discuss your legal entitlements and options with employment and Human Rights lawyer promptly. 

An employment and Human Rights lawyer has the training, experience and expertise to help you:

  • Prepare a persuasive demand or response letter with appropriate legal support for your legal position; 
  • Understand your legal entitlements and obligations;
  • Navigate negotiations and the appropriate legal process; and
  • Maximize the chances of achieving your desired result while minimizing your legal risks. 

In any given situation, there is no substitute for promptly consulting an employment and Human Rights lawyer where there is a workplace dispute. 


Employees in Ontario are entitled to minimum periods of unpaid leave and potentially longer under the ESA and the Code. Employers can also prepare workplace policies and procedures to ensure employees know what they have to do for requesting a medical leave. 

Employers have the right to know the basic details about a mental health struggle when an employee is going on medical leave through an appropriate note from a medical practitioner. This typically does not include a specific diagnosis or confidential medical information. Where an employer refuses an employee their right to medical leave and takes further inappropriate action against an employee, they may face legal claims for severance and Human Rights damages. 

Contact Us

If you are an employer or an employee with questions about workplace medical leave or need assistance with a workplace dispute, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at 1 (800) 771-7882 or email us at [email protected], and we will be happy to assist.

If you are a small or medium-sized company looking for full-service support with a same-day response, visit our CLO Program page for our strategic solutions. 

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