Sick Days Ontario: What Employers Need to Know

Though it should be straightforward, the topic of sick days Ontario is anything but. That’s because the number of sick days that workers are entitled to, and the rules surrounding the use of those days, have changed numerous times over the years.

The saga began when the Liberal government overhauled the Employment Standards Act, 2000 (ESA), and introduced 10 personal emergency leave days per calendar year—two of which had to be paid. Since that time, the Conservative government has changed the rules yet again, leading to major confusion among some employers (and employees).

Now that the COVID-19 pandemic has brought the issue of sick leave Ontario to the forefront yet again, it’s a great time to brush up on this particularly important section of the ESA. To help you cut through the noise and better understand sick days Ontario, we’ve created a handy guide that covers:

• What is sick leave?
• The length of sick leave in Ontario
• The reasons for taking sick leave
• Contracts that provide paid or unpaid sick leave
• How sick leave interacts with other types of leave
• Notice requirements
• Providing proof of entitlement
• An employee’s rights during sick leave
• The impact of COVID-19 on sick leave

With a more clear understanding of the sick days Ontario entitlement, you can evaluate the policy at your own company and make sure you’re in line with the Ontario labour laws.

Sick Days Ontario: An Overview

Before diving into the topic of sick days Ontario, it’s important to clarify what sick leave actually is.‍

Sick leave is the time that employees can take off of work for personal illness, injury, or a medical emergency. This time away from work is also known as sick leave, or sometimes sick days.‍

In Ontario, most employees are entitled to take up to three days of unpaid job-protected leave each calendar year—regardless of whether they are full-time, part-time, or minimum wage employees. Employees are entitled to this time once they have worked for their employer for at least two consecutive weeks. 

Keep in mind that there is no pro-rating of the three unpaid sick days. This means that if an employee begins work part way through a calendar year, they are still entitled to the full three days of leave for the rest of that year. For example, if Joe starts a new job in September, he is still entitled to three sick days for the remainder of the year.

And while an employee cannot carry over unused days to the next calendar year, the three days of sick leave do not have to be taken consecutively. In fact, employees can take their sick leave in full days, part days, or periods of days.

However, if an employee takes part of the day (ie. a half-day) for sick leave, their employer can count this as a full day of sick leave. Though the employee is still entitled to any wages they earned while working regardless of whether the employer counts that absence as a full day of sick leave or not.

For example, let’s say Arthur comes to work, but he leaves part-way through the day due to a severe stomach bug. Arthur has the right to take a half-day of sick leave, but his employer can choose to count it as a full day of leave if they want to. Even if the employer decides to count Arthur’s leave as a full sick day, Arthur is still entitled to the money he earned for the time he worked.

Though these rules apply to most employees, there are special rules and exemptions for some occupations. For instance, certain professionals cannot take sick days if their absence would constitute an act of professional misconduct or a failure to fulfill their professional duty (ie. various health practitioners).

Reasons for Taking Sick Leave

As mentioned above, employees can take sick days for personal illness, injury, or a medical emergency. The illness, injury, or medical emergency does not have to be related to work, and can be caused by factors beyond the employee’s control. For instance, if Linda sprains her ankle on a Sunday while out with friends, she can still take a sick day for that injury.

Though it may not be a medical emergency, sick leave can be taken for pre-planned (elective) surgeries if it’s for an illness or injury. This means that employees generally cannot take sick leave for cosmetic surgeries that aren’t related to an illness or injury.

Contracts That Include Sick Leave

Though employees in Ontario are entitled to just three days of unpaid sick leave under the  ESA, employees can enter into an employment contract, including a collective agreement, that provides greater benefits. In cases where the benefits are greater, the terms of the contract would apply instead of the ESA.‍

However, if the employment contract does not provide greater benefits, then the sick leave standard in the ESA applies to the employee. For example, if a contract provides an employee with two one personal sick day per year, but does not include job-protected time off for any other reason, this kind of contract would not provide greater benefits than the ESA. So in this case, the employee would still be entitled to the standard three days of job-protected sick leave per calendar year.

Keep in mind that if the employment contract provides something similar to sick leave (ie. paid sick days), and the employee uses those days, then the employee is considered to have also taken sick leave under the ESA. In other words, any illness or injury-related absence would count against both the employee’s paid sick days and their sick leave Ontario entitlement.

The Impact of Sick Leave on Other Types of Leave

In Ontario, there are several types of leave beyond sick leave. For instance, there is family responsibility leave, bereavement leave, family medical leave, critical illness leave, and many more. The purpose, length, and eligibility for these types of leave are all different, and employers should consult current Ontario labour laws for further information.

However, employees may be entitled to more than one type of leave at a time, therefore it’s important to know how sick leave impacts other types of leave. In Ontario, each type of leave is separate and the right to each leave is independent of any right an employee may have to the other leave(s). In other words, a single absence can only count against one type of leave, even if the event that triggered the absence is related to more than one type of leave.

Notice Requirements

Illness and injuries aren’t always predictable, but generally, an employee must inform his or her employer before starting their sick leave. If this doesn’t happen, notice must be given as soon as possible. This notice can be given orally and does not need to be formally written down.

Of course, even if an employee doesn’t give advanced notice, they do not lose their right to take sick leave.

Proof of Entitlement

In some cases, employers may want to see proof that an absence was related to an illness, injury, or medical emergency. If it’s “reasonable in the circumstances,” an employer can require an employee to provide evidence of their eligibility for sick days. What is considered “reasonable” will depend on the circumstances, such as whether there is a pattern of the absences, the length of the leave, whether any evidence is actually available, and the cost of obtaining that evidence. It’s important for employers to be both reasonable and flexible in requesting proof of entitlement from their employees.

Medical Notes

In some cases, evidence of sick leave can include medical notes from a health practitioner such as a doctor, nurse practitioner, or psychologist.

However, employers can only ask for the following information when requesting medical notes:

• The length (or expected length) of the employee’s absence
• The date that the employee was seen by the health care professional
• Whether the employee was examined in person by the health care professional who is issuing the medical note
  

This means that employers cannot ask for further details about the employee’s medical condition, diagnosis, or treatment.

Employee Rights During Sick Leave

While a lot has been said about how employers should handle sick leave Ontario, it’s important that employees are also aware of their rights.

Remember, sick leave is unpaid job-protected leave. This means that employers cannot threaten, fire, or penalize employees who take sick leave or plan to take sick leave. These are the same rights that employees who take pregnancy or parental leave are entitled to.

Sick Leave Ontario and COVID-19

While Ontario’s sick leave policy is fairly cut and dry, there have been some recent changes in light of the COVID-19 pandemic.