Sick Leave: A Guide for Workers in OntarioWritten on behalf of Peter McSherry
This year, flu season hit many of us with a vengeance. Billed as the “tripledemic,” we’ve seen the seasonal flu collide with COVID-19 and surging cases of respiratory syncytial virus. Workers have been forced to stay home, whether to care for themselves or an ill child. Employers have had to contend with dwindling staff.
Amongst the turmoil, workers may be frantically trying to brush up on Ontario’s sick leave laws. Am I entitled to sick pay? What if I need to stay home to care for my child? What if my employer denies my request? We’re here to walk you through the sick leave essentials.
Sick leave laws are set out in Ontario’s Employment Standards Act
In Ontario, the main law that protects workers’ rights is the Employment Standards Act (“ESA”). Most employees and employers are covered by the ESA; however, some are not. For example, the ESA does not apply to independent contractors or workers in federally-regulated industries such as aviation or banking.
The following guidance focuses on the rights of those covered by the Employment Standards Act. It’s important to note, however, that workers who are not governed by the ESA may still be entitled to sick leave or pay, so it’s a good idea to seek legal advice.
Employee’s contractual rights can’t be less than rights under the Employment Standards Act
An employee cannot contract themselves out of rights they have under Ontario’s Employment Standards Act. In practice, this means that an employee’s contract cannot provide fewer sick days than the minimum set out in the ESA. An employer can offer more than the minimum, but not less.
Further, employers can’t discipline employees for exercising their rights under the ESA. For example, an employer cannot withhold an employee’s bonus because they took sick leave that they were entitled to under the ESA.
Employees are entitled to three days of unpaid sick leave per year
Under the Employment Standards Act, Ontario employees are entitled to three days of unpaid sick leave per year. To qualify, an employee must have been working for the employer for at least two consecutive weeks. As well, the employee’s need to take leave must be related to one of the following:
- personal illness,
- personal injury, or
- personal medical emergency.
For the most part, determining whether an employee qualifies is straightforward. There are times, however, when it isn’t as clear. For example, an annual doctor’s checkup typically wouldn’t trigger a leave entitlement. However, if the appointment relates to the treatment of an underlying disease or injury, it would.
Sick days don’t need to be taken consecutively
Employees are entitled to three days of sick leave per calendar year. They can be taken consecutively or individually. In theory, an employee could take sick leave in part days or periods of more than one day. But the Employment Standards Act allows an employer to deem an employee to have taken one full day of leave even if they only took part of the day off.
Part-time employees have the same right to sick leave as full-time employees as long as they meet the two-week requirement. There is no pro-rating of their days of entitlement. Similarly, employees who get hired partway through the calendar year are entitled to three days if they’ve been employed for two consecutive weeks.
Employees are not permitted to carry over unused sick days into the next calendar year unless the employer’s sick day policy allows for it.
Employees need to notify their employer of their intention to take leave
The Employment Standards Act requires employees to tell their employers in advance if they need to take sick leave. There is no requirement that it be in writing — oral notice is sufficient. In the event that an employee cannot provide advance notice, they must notify their employer as soon as possible after
Employees who fail to notify their employers in advance when they could have done so put themselves in a precarious position. The employer may be justified in disciplining the employee without falling afoul of the ESA’s anti-reprisal provision. However, the discipline would need to relate specifically to the employee’s failure to provide notice and not to the taking of leave itself.
Paid sick leave is available to employees who must miss work for COVID-related reasons
Employees may be entitled to receive up to $200 a day for a maximum of three days if they cannot work for reasons related to COVID-19. This is called infectious disease emergency leave (“IDEL”), and it’s set to expire on March 31, 2023. Some reasons entitling an employee to take this leave include:
- going for a COVID-19 test
- being sick with COVID
- providing care or support to certain relatives for COVID-related reasons
Employers are responsible for making IDEL payments to employees, but they can apply to the government for reimbursement. The application must be made within 120 days of the paid leave.
Employees are entitled to job-protected leave to look after sick children
Employees are entitled to three days of unpaid leave to look after an ill or injured family member. This is called family responsibility leave. To be eligible, the employee must have been employed for two consecutive weeks.
If the child’s illness is more serious, there are other types of leave that extend the amount of time off employees can take.
Family caregiver leave
Family caregiver leave provides eight weeks of time off to provide care or support to a family member with a serious medical condition.
Family medical leave
Family medical leave provides 28 weeks of time off if the illness is even more serious and there is a significant risk of death.
Critical illness leave
For the most serious cases, critical illness leave provides 37 weeks of time off if the child is critically ill.
Contact Guelph Employment Lawyer Peter A. McSherry if you need help enforcing your right to sick leave
Sometimes we need to take time away from the workplace when we or our loved ones are sick. Not only is this in our own interests — it’s in the interests of our employers and co-workers as well. So, it’s important to ensure your employer is respecting your entitlement to take sick leave. The experienced employment law team at Peter A. McSherry can help you enforce your rights as an employee. Employment lawyer Peter A. McSherry can help you understand whether your employment contract is fair and advise you on your best options if you’ve been unfairly disciplined. If you’d like help with an issue relating to sick leave, reach us online or by phone at 519-821-5465 to speak with a member of our team.