This article has been updated on March 20, 2020, with news of proposed changes to the Employment Standards Act, but may still be out of date due to Ontario legislation changes resulting from COVID-19, which are currently in flux.
Maximum sick leave in Ontario
Section 50.2 of the Ontario Employment Standards Act (minimum statutory protections for Ontario workers) allows an employee to take a maximum of three (3) days of unpaid sick leave without any repercussions. However, this is not the end of the law. Discussed below, the Ontario Human Rights Code sort of extends the Employment Standards Act, allowing for sick leave longer than three days without any repercussion.
Every employee in Ontario is entitled to the same sick leave. It does not matter whether the employee is paid hourly or by annual salary, or is on contract, or is full time or part-time.
UPDATE – COVID-19 Coronavirus
As of March 16, 2020, the Ontario government has proposed that employees with coronavirus illness, symptoms or quarantine can take as many job-protected sick days as they require.
On March 19, the Employment Standards Amendment Act (Infectious Disease Emergencies) came into effect, sort of replacing Sick Leave for coronavirus affected employees with something called “Infectious Disease Emergency Leave”. As a result of the new law coming into effect, employees with coronavirus illness, symptoms or quarantine may take as many job-protected Infectious Disease Emergency Leave days as they require.
What is a sick day?
A sick day is any day an employee takes off work because of their own illness, injury or medical emergency. In other words, if someone is sick, incapacitated or hurt physically for any reason, they can take a sick day.
When can an employer ask for a doctor’s note in Ontario? As of 2020, in Ontario, an employer is free to ask an employee going on sick leave for a doctor’s note so long as it is “reasonable” (a previous rule prohibiting sick notes was removed by the legislature). What is “reasonable” depends on the unique circumstances of the specific employer and the specific employee. Employers should not ask for a doctors note if it is not “reasonable”. For example, it might not be reasonable to ask for a doctors note for a 1-day sick leave if the employee is not usually tardy or does not miss work a lot. On the contrary, for example, employers should consider asking for a doctors note if it is a long leave or because they genuinely sense the proposed sick leave is being abused (the Sunday after the Superbowl is a classic example). Nevertheless, employers should pause every time they think a sick note is required. The Ontario Medical Association has said, and I agree, that sick notes are not an appropriate attendance monitoring tool (physicians should not be put in the position of having to approve a patient’s return to work). Rather, doctors notes present a public health risk (i.e. requiring patients with the flu attend a clinic just to get a piece of paper) and extend the problem of hallway medicine in this province (by taking away the time of physicians).
UPDATE – COVID-19 Coronavirus
As of March 16, 2020, the Ontario government has proposed that an employer is not permitted to ask an employee for a doctor’s note evidencing that the employee is sick with coronavirus or under an order to quarantine.
Sick leave longer than three days
Although the Employment Standards Act does not contemplate a sick leave longer than 3 days, section 2 of the more broad-based Ontario Human Rights Code essentially says that employers must accommodate employees who are disabled up to the point of “undue hardship“. However, not every illness is a disability. A disability is a serious and non-temporary medical issue.
In that regard, in conjunction with the Employment Standards Act and Human Rights Code, there could be no cap on the number of sick days an employee can take in Ontario If they have a disability. The only cap on the number of sick days in Ontario is the date upon which it would be “unduly hard” for the employer to accommodate the disability for so many sick days for one single employee. In other words, there comes a certain point that the employer simply cannot accommodate the employee’s extended sick leave. Still, there is no calculation or formula as to what exact date the employer simply cannot accommodate the employee’s extended leave. It all depends on the definition of “undue hardship”. I wrote about the definition of undue hardship and the factors used to estimate it here.
We would put forth that Coronavirus illness or quarantine is serious enough that it is a “disability” as defined by the Human Rights Code. Thus, because of the Human Rights Code, employers are extremely likely to be forbidden from terminating or disciplining someone because of their coronavirus sickness or quarantine even where the employee was away from work for a long period. Under the Human Rights Code, an employer must accommodate disabled employees up to the point of undue hardship.
UPDATE – COVID-19 Coronavirus
The Ontario Human Rights Commission, which is an arm’s length governmental body tasked with preventing discrimination through public policy, but is not a decision maker, stated on March 13, 2020 that the Human Rights Code ground of “disability” is in fact engaged in relation to COVID-19 because it carries “significant social stigma”.
How long is sick leave in Ontario?
In summary, in Ontario, an employer has a duty to allow an employee sick leave for as long as the employee requires so long as the illness is serious enough and doing so would not be unduly hard for the employer. At the same time, so long as it is reasonable, the employee must provide a doctors note (if asked by the employer) to the employer evidencing the duration of the sick leave.
Employee protections during sick leave
- Employers do not have to pay employees on sick leave. But, employers must continue the employee’s benefits on sick leave;
- Employers must reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position if it does not;
- An employer cannot reprise against an employee for going on sick leave;
- Employers must accept the person’s request for sick leave in good faith unless there are legitimate reasons for acting otherwise;
- Employers may get an expert or second opinion or advice where needed where it is reasonable to do so in evaluating sick leave in Ontario;
- Employers should take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated, and canvass various forms of possible accommodation and alternative solutions;
- Employers must keep a record of the sick leave request and actions taken;
- Employers and employees alike must communicate regularly and effectively with each other, providing updates on the status of the accommodations and planned next steps and they should maintain confidentiality both ways;
- Employers must limit requests for doctors notes and only ask for them is if it is clearly reasonable.
Personal leave in Ontario?
Ontario employees used to have 10 days of leave called Personal Emergency Leave each calendar year due to illness, injury and medical emergencies. However, Personal Emergency Leave was eliminated in 2018. Therefore, as discussed above, as of 2020, employees in Ontario are only entitled to 3 days of sick leave due to personal illness, injury or medical emergency.
Note: The amount of sick leave according to the Employment Standards Act changes a lot (usually with every new government). However, remember, the Human Rights Code likely won’t change, so this blog post saying that there is no maximum sick days in Ontario should be true even decades after the date I posted it.
Dutton Employment Law works with employers and managers on finding sick leave solutions in Ontario. Call us for help on your sick leave issue.