Employees will take day(s) off work for things like personal illness, injury or medical emergencies and these days can be called “sick days.” In Ontario we have legislation called the Employment Standards Act, 2000 (“ESA”) that sets out that provincially regulated employees are allowed certain sick day entitlements. These days can also be called “sick leave.” The ESA further sets out that employees are entitled to three (3) unpaid sick days per calendar year and to qualify for those sick days the employee needs to be employed for at least two (2) consecutive weeks. Employees who are federally regulated, such as those employees who work in banking or in the telecommunication industry, are entitled to ten (10) paid sick days.
While employers are not obligated under the ESA to provide more than three (3) unpaid sick days, they may offer paid sick days as part of a benefit package, employment policy or as set out in the employment contract or agreement. Further, some employers may offer short or long-term disability insurance coverage through a third-party insurance provider. However, these are added benefits, and the employer is not obliged to provide these additional benefits to employees under the ESA.
One should also be aware that there are other protected leaves of absence under which an employee may fall that could overlap with an employee being “sick.” For instance, an employee may take family responsibility leave arising due to the illness, injury or medical emergency of a family member or bereavement leave which could incidentally also result in the employee’s own illness or medical condition.
Employees should let their employers know that they intend to take a sick day as soon as reasonable possible. However, the entitlement to the sick day remains even if the employee fails to do this. Further, the employee is not required to provide to the employer a “sick note” or “doctor’s note” setting out the reason the employee is taking a sick day. However, employees may still need to provide certain information if they are taking a sick leave that is longer than a couple of days and what information the employee should provide would be determined based on the specific circumstances of the sick leave.
Can an employee be fired for taking more than three (3) unpaid sick days per calendar year?
While it is possible that an employer terminates an employee for taking more than three (3) unpaid sick days, it is extremely unlikely as firing an employee for simply taking sick leave greater than three (3) days would almost certainly violate the Ontario Human Rights Code, 1990 (“Code”). Under the Code employers are mandated to accommodate their employees if they take sick leave up to the point of undue hardship. This means that an employee may be theoretically allowed to be on “sick leave” for months or, possibly, even years. However, employers may terminate or dismiss an employee for taking sick leave if the sick leave majorly disrupts the employer’s business and any accommodations cannot alleviate the situation without extreme difficulty having regard to the employer’s costs, productivity, health and safety requirements…etc.
The issues surrounding what to do related to sick days and sick leave can be a bit tricky for both employers and employees. We suggest that employers seek out an employment lawyer to assist them if they have any questions or concerns about these issues. We further suggest that if any employee who may have a dispute with their employer over sick leave or has been fired for being sick should contact an employment lawyer as well as the employee may have a claim for wrongful dismissal, constructive dismissal or human rights violations.
