If an employee is sick, incapacitated or hurt physically for any reason, they can take days off work. The days off work because of the employee’s illness, injury or medical emergency are called sick days. Sick days can also be used to attend a doctor’s appointment, if the appointment is because of an illness, injury or medical emergency.

Who is Eligible

The Employment Standards Act provides that an employee who has been employed by an employer for at least two consecutive weeks is entitled to a leave of absence without pay because of a personal illness, injury or medical emergency.

How Many Days Can an Employee Take

The Employment Standards Act limits an employee’s entitlement to take sick leave to a total of three days in each calendar year. In addition, if an employee takes any part of a day as leave under this section, the employer may deem the employee to have taken one day of leave on that day.

However, if an employee suffers an illness that can be characterized as a disability, the Human Rights Code provides that employers must accommodate employees who are disabled up to the point of “undue hardship”. In other words, in such cases, the employee will be entitled to take as many days as necessary, until when it becomes “unduly hard” for the employer to accommodate the disability.

When Can an Employer Ask for A Doctor’s Note

An employer can ask an employee going on sick leave to provide a medical note from a health practitioner such as a doctor, nurse practitioner or psychologist, as long as this requirement is “reasonable in the circumstances”. The analysis for reasonableness will depend on all of the facts of the situation, such as the duration of the leave, whether there is a pattern of absences, whether any evidence is available and the cost of the evidence.

Nevertheless, the information that the employer is entitled to inquire is limited to the (expected) duration of the absence, the date the employee was seen by a health care professional and whether the patient was examined in person by the health care professional issuing the note. The employer cannot ask about the diagnosis or treatment of the employee’s medical condition.

Furthermore, under the current amendment to the Employment Standards Act due to COVID-19, retroactive to January 25, 2020, the employer cannot require the employee to provide evidence that the employee is sick with coronavirus or under an order to quarantine.

Employee’s Rights during Sick Leave

Employers are prohibited from threatening, firing or penalizing an employee who takes or plans on taking a sick leave in any way, and they must accept an employee’s request for sick leave in good faith, unless there are legitimate reasons for acting otherwise.

Although the employer does not have to pay the employee on sick leave, but they must continue the employee’s benefits on sick leave. After the employee returns to work after sick leave, the employer must reinstate them to the position that they most recently held with the employer, if it still exists, or if the position is no longer available, the employer shall offer a comparable position.

Stacey Reginald Ball is an experienced employment lawyer with Ball Professional Corporation.  Our office is located in Toronto, Ontario, and handles various employment law matters, including wrongful dismissal.  If you have questions regarding employment law issues, please call our office at (416) 921-7997 ext. 225.

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