Employees may often worry whether they can be fired for taking time off from work due to illness. The short answer is – no.
Sick Leave and Statutory Provisions
According to our wrongful dismissal lawyer in Toronto, An employer cannot fire an employee for taking legitimate sick days or a medical leave of absence. According to the Employment Standards Act, employees in Ontario are entitled to at least three sick days each year. Employers are also bound by the Ontario Human Rights Code (OHRC). Section 13 of the OHRC imposes the duty to accommodate the needs of people with psychosocial disabilities on employers. Consequently, employers must provide sufficient medical leave to employees, unless doing so would bring undue hardship to the employer. The difficulty, however, is that it is extremely difficult for an employer to prove undue hardship. Here, the employer must prove they have done everything in their power to support the employee and that any additional support would create an undue hardship for the employer. In turn, employers leave themselves vulnerable to human rights claims if they fire an employee for taking sick leave.
The View of Canadian Courts
It is generally held across Canadian courts, that an employer is entitled to discharge an employee who fraudulently claims sick leave. Courts have generally imposed such a high penalty for this offense due to the breach of trust incurred to the employer and because of their difficulty to detect. In an Ontario case, an employee was terminated from his position at Ineos Nova Ltd. when he left a voicemail to his employer claiming to be sick but admitted to lying about it when he forgot to hang up the phone. In this case, the arbitrator found that the level of trust had been breached beyond repair and because of that the termination was justifiable.
In a similar case from Alberta, a Telus employee by the name of Jarrod Underwood, was fired from his position of five years for calling in sick under false pretenses. Mr. Underwood had requested the day off to compete in a softball tournament. When his request was denied, Mr. Underwood called in on the morning of the tournament and stated that he couldn’t come in to work due to ‘unforeseen circumstances’. His employer was suspicious and decided to go to the tournament to see if Mr. Underwood was there. He saw Underwood playing in the tournament and upon being questioned about the incident, Mr. Underwood insisted that he was sick but that his symptoms could be better managed at the ballpark. Mr. Underwood was fired but claimed wrongful termination. The arbitrator argued for a one-month suspension instead of termination, but the Court of Queen’s Bench upheld Telus’ decision to fire Mr. Underwood, arguing that his dishonesty had irreparably damaged the employment relationship.
The Role of Technology
With the digitalization of society, it is becoming increasingly common for employers to catch their employees taking false sick days though their social media use. In 2014, a TTC bus driver was fired from his position when he posted pictures on his Facebook page that showed him partying in Vegas after claiming to be sick. Another Canadian employee was fired from her job at the Insurance Corporation of British Columbia for ‘dishonesty and sick leave fraud’ when she posted to social media that she was celebrating out of town with her husband after calling in sick to work that day.
Remember, under the Ontario Human Rights Code, employees are entitled to take legitimate sick leave and cannot be fired for taking too many sick days. If an employer denies sick leave to an employee, this is a serious human rights violation, and the employee is entitled to take legal action against the employer. If the employee, however, takes sick leave and lies about it, the employer is generally entitled to terminate his or her employment.