Can You Be Fired After Taking Sick Leave? Understanding Employee Rights in Ontario

Written on behalf of Peter McSherry

Employees occasionally need time away from work due to illness, injury, or other medical issues. In Ontario, employees have certain legal protections when they need to take sick leave, and employers must comply with both employment standards legislation and human rights obligations when responding to an employee’s medical condition.

However, employees are sometimes surprised to learn that they have been terminated shortly after taking medical leave or returning to work following an illness. These situations can raise important legal questions about whether the termination was lawful or whether it may amount to wrongful dismissal or disability discrimination.

While employers retain the right to manage their workforce and terminate employment in certain circumstances, they must ensure that their decisions do not violate employment standards or human rights laws. Understanding how these legal frameworks interact can help employees determine whether their rights may have been affected.

Sick Leave Entitlements Under Ontario Law

In Ontario, the Employment Standards Act (ESA) establishes minimum standards for employee rights, including job-protected leave related to illness.

Eligible employees are generally entitled to up to three days of unpaid sick leave per year if they have worked for their employer for at least two consecutive weeks. This leave can be used for personal illness, injury, or medical emergencies.

During a protected sick leave under the ESA, employers are prohibited from terminating or penalizing employees for taking the leave. The legislation also requires employers to reinstate employees to their positions or a comparable role upon the end of the leave.

While these statutory entitlements provide important baseline protections, many employees mistakenly assume that the ESA represents the full scope of their rights. In reality, broader protections may arise under human rights legislation and the common law.

The Role of Disability Protections in the Workplace

Medical conditions may also be protected under the Ontario Human Rights Code, which prohibits discrimination on the basis of disability. The definition of disability is broad and includes physical illnesses, mental health conditions, injuries, and chronic medical issues.

When an employee’s illness or injury qualifies as a disability under the Human Rights Code, the employer may have a duty to accommodate the employee to the point of undue hardship.

Accommodation can take many forms depending on the circumstances. In some cases, employees may require modified duties, adjusted schedules, or temporary medical leave to recover from their condition. In other situations, a gradual return-to-work plan may be appropriate.

Employers are expected to participate in the accommodation process in good faith. This often involves reviewing medical documentation, discussing potential adjustments with the employee, and considering reasonable ways to allow the employee to continue working.

Termination Shortly After Sick Leave

One situation that frequently raises concerns is when an employee is terminated shortly after taking sick leave or shortly after returning to work following a medical absence.

While timing alone does not automatically make a termination unlawful, it can sometimes raise questions about the employer’s motivation. For example, concerns may arise if an employee is dismissed immediately after disclosing a serious medical condition or if the employer previously expressed frustration about the employee’s absence.

Similarly, if an employee had a positive performance history before taking sick leave but is terminated shortly after returning to work, the circumstances may warrant closer examination. In these cases, determining whether the termination was connected to the employee’s illness often requires reviewing the employer’s stated reasons for dismissal and the broader context of the employment relationship.

When Termination May Amount to Disability Discrimination

Termination related to an employee’s medical condition may amount to discrimination if the illness or disability played a role in the employer’s decision. For example, an employer may violate human rights legislation if they terminate an employee because the employee required medical leave, needed workplace accommodations, or was perceived as less capable due to their condition.

Employers are generally required to explore reasonable accommodations before concluding that an employee can no longer perform their job. This may involve assessing whether modified duties, adjusted schedules, or other workplace changes could allow the employee to continue working.

In some situations, employers may argue that accommodating the employee would create undue hardship, which is the legal threshold for limiting accommodation obligations. However, this threshold is relatively high and must typically be supported by evidence of significant financial costs, safety concerns, or other serious operational challenges. As a result, employers must carefully consider accommodation options before terminating employment where disability is involved.

Long-Term Illness and Frustration of Contract

In certain circumstances, a prolonged medical absence may lead an employer to argue that the employment contract has become frustrated.

Frustration of contract occurs when an unforeseen event makes it impossible for the employment relationship to continue as originally intended. In the context of illness, this argument may arise when an employee is unable to return to work for an extended period of time, and there is no reasonable prospect of recovery in the foreseeable future.

When frustration of contract is established, the employment relationship may end without the typical obligation to provide common law reasonable notice. However, this legal doctrine is applied cautiously and depends heavily on the specific facts of the situation. Courts typically consider factors such as the nature of the employee’s medical condition, the expected duration of recovery, and whether accommodation options have been explored.

Because these cases are highly fact-specific, determining whether frustration of contract applies often requires detailed legal analysis.

Wrongful Dismissal and Severance Rights

Even if a termination is not discriminatory, employees may still have a right to severance or damages under wrongful dismissal law.

In Ontario, employers who terminate employees without cause are generally required to provide reasonable notice of termination or pay in lieu of notice. While the ESA sets minimum statutory notice requirements, many employees are entitled to significantly greater compensation under the common law.

The amount of notice that may be owed depends on factors such as the employee’s age, length of service, position, and ability to secure comparable employment. Employees who are terminated shortly after taking sick leave may therefore have multiple potential legal considerations, including whether the dismissal was discriminatory and whether the employer provided adequate notice or severance.

What Employees Should Document

Employees who believe their illness or medical leave may have played a role in their termination may find it helpful to maintain records of key workplace events. For example, employees may wish to retain copies of communications with management regarding medical leave, accommodation requests, or return-to-work discussions.

Performance reviews, written warnings, and other employment-related documents may also provide helpful context when assessing whether the termination decision was connected to the employee’s health condition. While documentation alone does not determine the outcome of a legal claim, it can provide important evidence if the situation later requires legal review.

Understanding Your Rights After Termination

Being terminated while dealing with a medical condition can be an extremely stressful experience. In addition to managing health concerns, employees may suddenly face financial uncertainty and questions about their legal rights.

Although employers are permitted to terminate employment in some circumstances, they must ensure that their decisions comply with employment standards legislation and human rights law.

If a termination appears to be connected to an employee’s illness, disability, or medical leave, the situation may warrant closer examination. Understanding the legal framework surrounding sick leave, accommodation, and wrongful dismissal can help employees determine whether their rights may have been affected.

Contact Peter A. McSherry for Comprehensive Advice on Termination & Medical Leave in Guelph

If you were terminated after taking sick leave or disclosing a medical condition, you may have legal rights that should be carefully reviewed. Peter A. McSherry Employment Lawyer represents employees throughout Guelph and Southwestern Ontario in matters involving wrongful dismissal, disability discrimination, workplace accommodations, and severance disputes. Our firm can review the circumstances of your termination, assess whether your employer complied with Ontario employment and human rights laws, and help you understand your options moving forward. To schedule a confidential consultation, please contact us online or call 519-821-5465.