The term “sick leave” is used by most people to refer to any time taken off work when someone is too sick or has an injury and has to stay home. But sick leave actually refers to a specific type of leave that is spelled out in either an employment contract or federal and provincial laws and details the rules and rights allowed by a sick leave, including who is eligible, when it can be taken, and the length of time allowed.
In this post, you’ll learn about sick leave in Canada and Ontario, short-term and long-term sick leave and how a disability lawyer in Toronto can help you protect your rights.
Disclaimer: The information in this guide and everywhere else on this website is for general information only and is not intended to provide legal advice of any kind. No lawyer-client relationship is created by accessing or otherwise using Ertl Lawyers’ website or by communicating with a lawyer or staff member. If you need legal advice, please contact our staff at Ertl Lawyers disability and employment lawyers. We’re more than happy to speak with you.
What is Sick Leave?
Sick leave is job-protected time off work due to illnesses and injuries, medical emergencies or planned surgeries (including elective surgery but excluding cosmetic surgery) and can be paid or unpaid. The illness or injury does not have to be work-related, and you are still entitled to it even if you are injured due to your own negligence.
In Canada, the rules around sick leave are left to provinces or employers to decide, except for federal workers and federally-regulated industries, whose sick leave is covered by the Canada Labour Code, an employment contract or collective bargaining agreement.
Currently, the Government of Canada’s sick leave policy for federal employees allows five days of leave in a calendar year for sick leave or leave related to the health or care of any of their family members. It includes three paid days after three months of continuous employment.
Provincial employment acts and regulations change with new circumstances and governments. This Canadian Labour Congress page summarizes current sick leave requirements for each province and links to each one’s employment legislation for reference.
Ontario Sick Leave
Visit this page for information on the Ontario COVID-19 Worker Income Protection Benefit.
The amount of sick leave in Ontario is determined by the Employment Standards Act, an employment contract or a collective agreement. The ESA does not apply to independent contractors, interns, volunteers or anyone else who doesn’t meet the definition of an employee in the Act. It also excludes certain professions (e.g. police officers) and industries (e.g. TV and radio stations) and has special rules and exemptions for other industries such as emergency medical services, agriculture and hospitality. Click here for the complete list of exempted workers and industries.
Both full-time and part-time employees covered by the ESA are currently entitled to three unpaid days of sick leave per calendar year as long as they’ve worked for their employer for at least two consecutive weeks. Those days are not pro-rated, meaning that workers are entitled to all three days regardless of how late in the year they are hired. However, unused sick days do not carry over to following years. They do not have to be taken consecutively, but if an employee takes a half-day off, their employer can count it as a full day.
Employer-Provided Sick Leave
Employment contracts, including collective agreements, can also cover a workplace’s sick leave policy. If an employer’s sick leave provides greater benefit than the ESA, the employment contract’s sick leave policy applies. The ESA’s sick leave provisions are the minimum required by law, so if an employer only offers one sick day off a year, for example, their employees are still entitled to two more unpaid days off per year for sick leave.
Whether your work offers paid or unpaid sick leave, you are only entitled to three days off a year or the number allowed in your employment contract, whichever is greater. In other words, ESA sick leave is not transferrable, and any sick days you take count as sick leave under both your employment contract and your legally-protected sick days under the ESA.
Sick Leave and Employment Rights
Sick days are protected, meaning an employer can’t fire, threaten or penalize you for taking sick leave. If an employer cuts your hours or changes your role or duties at work for taking sick leave, speak to us right away.
Other rights and obligations you need to know about sick leave include:
Giving Your Employer Notice
You have a duty to notify your employer if you need to use your sick days. Ideally, that notice should be given before you go on leave. However, notifying your employer as soon as possible after starting the sick leave is acceptable and will not disqualify you from using your sick leave.
You don’t have to give written notice, notice can be given verbally.
Providing Your Employer with Proof of Eligibility and Medical Notes
An employer can ask you to provide proof that the sick leave is legitimate as long as it’s “reasonable in the circumstances.” Reasonableness will depend on the situation and can be based on factors like whether the employee has a history of absenteeism, the amount of time off, if there’s any proof available and the cost of that proof.
Also, if it’s reasonable, an employer can ask you to provide a medical note from a healthcare provider such as a doctor, nurse practitioner or psychologist. But they are only entitled to know the date you were seen by the health care practitioner, whether you were seen in person by the healthcare professional issuing the note and how long you’re expected to be on leave.
Using Sick Leave with Other Types of Leave
Ontario workers may also be entitled to other types of leave from work, including:
- Bereavement Leave
- Child Death Leave
- Crime-Related Child Disappearance Leave
- Critical Illness Leave
- Domestic or Sexual Violence Leave
- Family Caregiver Leave
- Family Medical Leave
- Family Responsibility Leave
A single event may require you to take more time off work than your allotted sick leave. If the circumstances of that event entitle you to another type of leave, you can take it in addition to the sick leave. For example, you may need to use your sick leave after taking bereavement leave if your healthcare provider feels that you need to seek treatment before returning to work.
Days used under one leave entitlement do not count against days you’re entitled to in another leave, even if they’re related to the same event.
What Happens When Sick Leave Runs Out?
If you have used up your sick leave and still need time off because of a prolonged illness or injury, you may qualify for one of two options to go on a job-protected leave.
Some employers provide group or employer-run insurance plans that include coverage for medical, dental and drug expenses, to name a few. This plan may also include short-term disability benefits. You’ll have to check the policy to know if it does and the eligibility requirements. Generally speaking, an injury or illness has to be severe enough to prevent you from being able to perform the essential duties of your job.
Each plan is different, but short-term disability benefits can provide income replacement for qualifying employees anywhere from 17 to 52 weeks. They may pay an employee’s full or partial salary in that time.
If your employer does not provide insurance coverage, you may be eligible for the Government of Canada’s Employment Insurance (EI) sickness benefits. If you are entitled to any employer-provided sick days, you must use them all before applying. You will also not be eligible if you are currently receiving Worker’s Compensation or Workplace Safety Insurance benefits.
Other eligibility criteria include:
- Proving that you can not work for medical reasons (you must provide a medical certificate).
- You’ve paid EI premiums.
- Your income must have decreased by at least 40%.
- You’ve accumulated at least 600 insured hours of work in the last 52 weeks.
EI sickness benefits usually cover 55% of your average insurable weekly income and are paid up to 15 weeks. The numbers have been changing because of COVID-19, so check here for the latest amounts.
Is There Long-Term Sick Leave in Ontario?
There is no long-term sick leave, but, like short-term disability benefits, your employer may provide insurance coverage for long-term disability (LTD) benefits. Usually, a person will use up their short-term disability benefits or EI sickness benefits, and if their illness or injury is severe enough that they are still unable to complete the job functions of their occupation, they will apply for long-term disability benefits.
Insurance companies routinely deny long-term disability applications, so speak to us right away if you received a denied LTD claim. You may still be entitled to LTD benefits, but there is a time limit on your option to dispute their decision.
We are Leaders in Employment and Disability Law
There’s a lot to know about your rights in the workplace and the options available to protect them. If you have questions about sick leave, your employer’s duty to accommodate or any other employment-related questions, take advantage of a free consultation with an employment lawyer in Toronto.