Employment & Labour

Taking sick leave

By Bram Lecker and Simon Pelsmakher

Most employees wear their attendance record like a badge of honour. It symbolizes their work ethic and loyalty to their employer. When ill, it is not uncommon to see many opt to come into the office. This, despite receiving government protected sick leave or employer-sponsored disability benefits. While many employees do this out of dedication, some in this predicament fear penalties or losing their job.

Under our laws, nothing could be farther from the truth.

Protected sick leave

The Government of Ontario recently introduced changes that substantially improved sick leave provisions specifically for Personal Emergency Leave (PEL). Commencing Jan. 1, 2018, all employees have the right to take up to 10 unpaid days off for PEL. In addition, if you have worked for at least one week with the same employer then you get paid for two of those 10 days.

Your job is fully protected when you take PEL. This means your employer cannot terminate your employment just because you are sick. More importantly, the government recognizes medical information as sacrosanct and of utmost privacy. The new legislation prevents your employer from demanding a sick note from your physician.

Family medical leave

Our employment laws were also amended to recognize employees as integral family members, sometimes called upon to provide care for critically ill or dying relatives. Our Family Medical Leave (FML) allows you up to 28 weeks off per year to do just that. Almost all employees are eligible for this leave, regardless of your length of service or status as full-time or part-time.

The law is quite broad about FML. It permits you to care for spouses, parents, children, siblings and grandparents. It also allows you to care for people considered “like your family member.” Similar to PEL, this is considered a protected sick leave. Your employer risks a fine of $1,500 if they fail to comply with the legislation.

EI sick leave benefits

Our federal government offers you sick leave financial assistance through the Employment Insurance (EI) program. Canadians with at least one year of service can qualify to receive these benefits for an extended illness, injury or quarantine. Service Canada administers the EI Sick Leave program. They provide you with up to $547 per week for up to 15 weeks. If you work during this period, the government will reduce your earnings, dollar for dollar, from your benefits.

Short term & long term disability plans

Some employees receive disability benefits as part of an enhanced compensation package. These are fantastic “peace of mind” contracts that cover you financially for up to 60 per cent of your salary, should you require extended sick leave to recover from a serious illness.

Your insurer would base your eligibility for benefits on a medical determination that you cannot perform more than 60 per cent of your duties. Generally, you would apply for Short Term Disability (STD) if your physician recommends taking six months or less sick leave. If you expect to be off for longer, then you should apply for Long Term Disability (LTD) benefits.

While many employers offer these benefits to entice and attract quality employees, what is not openly discussed is the high number of disability claims that get denied by insurers. Often, the process to qualify or continue to receive your benefits requires legal intervention by a specialized employment lawyer also familiar with disability benefits law.

Discrimination and harassment during sick leave

While you are off recovering from your illness, the Ontario Human Rights Code prohibits employers from discriminating against you. This includes firing you from your job because of your illness or disability. Sadly, in some corporate HR circles, an odious term exists to describe employees returning from sick leave: “Damaged Goods.” Such employers are most likely to harass returning employees, hoping they will quit. Unwilling resignations constitute a constructive dismissal; it is completely against the law.

In fact, the law requires your employer to make reasonable attempts to accommodate you upon your return, until you are able to get back to working at full speed.

Sick leave – frustration of the employment contract

Some employers threaten employees on long-term sick leave with termination for frustration of the employment contract. Your employer may argue that the employment contract is impossible to fulfill, rendering it null and void. They take the stand that your illness or disability is severe enough to prevent you from returning back to work.

Any employee faced with this should immediately consult with an employment lawyer. First of all, the law mandates that your employer satisfy a high burden of proof to successfully demonstrate frustration of the contract. They have to prove it, you do not need to disprove their position.

In addition, they cannot demand confidential medical documentation. Your physician simply needs to certify when and if you can return to work. Canadian courts have held steady in defending employees in this matter by stating that, under some circumstances, employment relationship may not be frustrated even after seven years of absence.

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