Ontario Sick Day Rules Draw Criticism as Coronavirus Fears Grow

The Ontario Employment Standards Act was changed again in 2019. After just a year, our last post on sick days was rendered out-dated by cuts to sick day entitlements for most Ontario workers. In place of 10 days of personal emergency leave (2 of which were paid), workers are now entitled to just 3 unpaid sick days and 3 unpaid “family responsibility” days.

This week, Molyneaux Law’s Sarah Molyneaux spoke to CBC Radio morning hosts across the province about what these changes mean as Ontarians gear up for flu season and worry about the potential impact of the coronavirus.

Sick employees or employees with sick children should make note of the following changes to their basic rights:

• Instead of 10 days of personal emergency leave, employees can take 3 days for personal illness and injury (called “sick leave”) and 3 additional days for illness, injury, medical emergency or urgent matters relating to their spouse, parent, child, grandparent, grandchild, sibling, or other dependent (called “family responsibility leave”)
• The right to paid days off is eliminated
• Employers may ask for a doctor’s note or other proof reasonable in the circumstances after a sick day

One thing that hasn’t changed since our last blog post on this topic is that employees may not be limited by the Employment Standards Act rules. The Act establishes the minimum standards only. Think about how this law sets a minimum wage, but you may have an agreement to be paid more than that. Similarly, you may be entitled to more sick days under your employment contract, your collective agreement or your employer’s policies than the minimum standard requires.

At the same time, employees dealing with serious Illness or injury in their families may have additional entitlements under the Employment Standards Act. Things like family medical leave, family caregiver leave and critical illness offer 8 to 37 weeks off to workers in these extreme circumstances, depending on the leave and circumstances.

Employees who need more time off because of a disability-related need or to provide care for a parent or child may also have protection under the Human Rights Code if enforcement of the 3 day maximum violates their employer’s duty to reasonably accommodate to the point of undue hardship.

Employees who aren’t sure what their rights are or think their employer is illegally refusing them time off should call an employment lawyer to get advice.

Why the change to sick day rights in Ontario?

The government defended this reduction in sick day rights by pointing to costs to employers. Others have argued that employees abuse sick days, taking a sick day when they’re not really sick.

As Sarah told Wei Chen on CBC Radio Ontario Morning, “I’m sure that some people do [abuse sick days]. Particularly with an entitlement of just 3 days, I’m skeptical that that’s a serious risk. The average person will be sick at least three days in a calendar year. […] The benefits that we can gain from having genuinely sick people stay home or people with genuinely sick parents or children stay home to care for those people certainly outweigh the risk of a small number of people abusing the right to take just 3 unpaid days off work.”

Sarah’s not the only critic. A group of health care workers and workers’ rights activists (Decent Work & Health Network) recently sent an Open Letter calling on the Ontario government to reinstate the right to take 10 days of Personal Emergency Leave. They even asked for an increase to 7 days of paid time off and an end to the right to demand unnecessary doctor’s notes. In support of their request, they explained that the best medical advice is often to stay home and rest- and that this reduces the chance of spreading disease.

RESOURCES:

Ontario Ministry of Labour, Sick Leave

Ontario Ministry of Labour, Family Responsibility Leave