Q&A: Employee Sick Leave and Medical Information

Q&A is a recurring series on the Vey Willetts LLP blog. The aim is to provide quick answers to questions we commonly encounter in our day-to-day practice of employment law. In this edition we focus on employee sick leave and medical information.

Q: Can my employer prevent me from taking sick leave?

A:  Generally not. In Ontario, section 50 of the Employment Standards Act, 2000 ("ESA"), provides for up to 10 days of unpaid leave per calendar year for personal emergency situations, such as illness. This is a job-protected leave but only applies to employers of 50 or more employees. For those who qualify for leave, you are entitled to take such time off from work without fear of reprisal for your absence.

In addition to the ESA, the Ontario Human Rights Code ("Code") requires employers to provide reasonable accommodation of disability (which includes non-transitory illness and physical injury). Depending on the nature of the illness at issue, these anti-discrimination provisions may require that your employer provide you with time off work due to illness.

Further, most employment contracts allow for a certain amount of sick leave days (paid or unpaid) to be taken by employees each calendar year. As such, be sure to check any written agreement you may have.

Q: Does my employer have to pay me while I'm on sick leave?

A: No, not unless the terms of your employment agreement provide for paid sick leave. The ESA only requires unpaid sick leave, as described above. As such, if your employer does not provide you with paid sick leave, you will have no entitlement in this regard. Beyond this, however, employees can apply for Employment Insurance ("EI") sickness benefits, and should do so in the appropriate circumstances. To find out whether you qualify for EI sickness benefits, visit the applicable Government of Canada website.

If your illness is more prolonged, you may look to access short-term, and then long-term, disability benefits. Employers are not required to provide paid disability benefits; however, if your employer does, make sure you apply for both in the appropriate circumstances. 

Q: What information can my employer request from me while I am on sick leave?

A: Your employer has the right to information which will allow it to: verify the legitimacy of your absence; understand your prognosis; and safely return you to the workplace. For example, your employer may request a note from your treating physician confirming the necessity of your absence.

Employers, however, are typically not entitled to know your diagnosis or the specifics of your illness. As such, while an employer would have the right to know that you can return to work with reduced hours, for example, the employer would not have the right to know you are experiencing clinical depression.

Q: Can my employer terminate my employment while I am on sick leave or immediately after I return from sick leave?

A: Yes, employers in Ontario are allowed to hire and fire employees as they choose. There is, however, an important caveat to this rule. Ontario employers cannot dismiss an employee if the decision to terminate is formed in whole, or in part, in response to one of the protected grounds provided for in the Code. These grounds include disability due to non-transitory illness or physical injury.

Additional Resources for Ontario Employees and Employers

• The Ontario Human Rights Commission's Policy Position on Medical Information to be Provided when a Disability-Related Accommodation Request is Made
• Ministry of Labour Summary of Personal Emergency Leave under the ESA.

*This Q&A article is provided solely for informational purposes. It is not specific legal advice. Should you wish to receive specific legal advice regarding your particular circumstances, please contact us directly.

Vey Willetts LLP is an Ottawa-based employment and labour law boutique that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in the National Capital Region and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca