COVID-19: Ontario Employee Sick Leave & Employment Law

Ontario Employee Sick Leave Entitlements

Ontario Employee Sick Leave Entitlements | Author: Kimberley Sebag, Employment Lawyer, Lecker & Associates.

Covid-19 & Ontario Employee Sick Leave Entitlements

For most of us, a secure job is our mainstay for financial security. So, what happens if you cannot work because of COVID-19? This respiratory illness brings challenges that contemporary workplaces have yet to deal with.

World Health Organization (WHO) has declared COVID-19 a pandemic. This designation refers to the spread of the virus, rather than the severity of its symptoms and fatality rates. The WHO believes it will impact every sector in the world. At the time of publishing this blog, the virus had infected 118,000 people in 110 countries. Canada had 103 diagnosed cases, with one fatality. It is early days and we are becoming more aware of protective measures, like hand-washing and self-quarantine.

Employer Preparedness

Employers across the province are now dusting off policy manuals and adjusting them for what COVID-19 brings to our doorstep. While nobody can predict its trajectory, employers remain obliged to maintain safe workplaces and follow public health guidelines. Organizations large and small are grappling with the reality of staff absences, impacts on productivity and profits. Proactive employers are testing remote working, minimizing travel plans, meetings and event attendance. Small businesses without paid sick leave benefits are coming to terms with the risk of sick employees showing up for work. What happens if they cannot afford to stay at home?

In the backdrop of these realities, all Ontario employees must understand their rights, as well as the full suite of sick leave entitlements available to them, both legislated and privately funded.

Employer-Sponsored Personal Leave

Some organizations offer their employees paid days off for emergencies to manage a sudden illness, or to take care of a sick family member. They also extend this benefit to staff requiring bereavement leave. Employees fortunate to receive such Personal Emergency Leave benefits will fare the best during a self-imposed or medically directed quarantine. You should consult your employee handbook or inquire about the number of days you are permitted to take off in the event of a COVID-19 quarantine or illness. 

Federal EI Sick Leave Benefits

If you do not receive paid personal emergency leave, then you may be among the vast majority of Canadian employees who qualify for the EI Sick Leave Benefits program, an extension of the Federal Employment Insurance (EI) Program. You could receive financial support of up to $573 per week, for a maximum of 15 weeks, during quarantine or illness if your employer automatically remits your EI premiums to the federal government via payroll deductions, and if you have banked at least 600 insurable work hours.

The federal government announced timely changes to this program in anticipation of COVID-19. An important amendment includes eliminating the customary one-week waiting period that exists for other EI Sick Benefits claims. This makes benefits immediately available for anyone in quarantine. In addition, the government has waived the requirement of medical certificates and doctors’ notes if your employer asks you to self-isolate, or if you must do so via a legal order of a health official. Service Canada locations presently remain closed for in-person visits, but you can easily make an application for sick leave benefits online.  

Employees Without Sick Leave Benefits

The federal government has also announced an Emergency Care Benefit for workers who do not have access to the sick leave benefits described above. Contact your local Service Canada office to apply for income support of up to $900 bi-weekly for up to 15 weeks.

The Ontario government offers you eight unpaid Personal Emergency Leave (PEL) days annually; three for personal illness, three for family responsibilities and two for personal bereavement. Your job is fully protected when you take PEL. This means your employer cannot terminate your employment when you take them. However, these provisions fall short for covering a 14-day quarantine. The provincial government is introducing legislative changes to ensure jobs remain secure through the COVID-19 pandemic. We will publish the details once the law passes.

Ontario Employee Sick Leave: Family Medical Leave

Ontario’s Employment Standards Act recognizes employees as integral family members, who must sometimes provide care for critically ill or dying relatives. If you need time off to tend to a loved one afflicted with COVID-19, then Family Medical Leave (FML) offers you up to 27 unpaid weeks off per year to do just that. Almost all employees are eligible for this leave, regardless of your length of service or status as full-time or part-time.

The law is quite broad about FML. You may take it when a qualified health practitioner issues a certificate indicating that a family member has a serious medical condition with a significant risk of death occurring within a period of 26 weeks. It permits you to care for spouses, parents, children, siblings and grand-parents. It also allows you to care for people considered “like your family member”. Similar to PEL, this is considered a protected sick leave. Your employer risks a fine of $1,500 if they fail to comply with the legislation.

Short Term & Long Term Disability Plans

Employers and employees often pay for private disability benefits as part of an enhanced compensation package. These are fantastic peace-of-mind contracts that cover you financially for up to 60% of your salary, should you require extended sick leave to recover from a serious illness. Your insurer would base your eligibility for benefits on a medical determination that you cannot perform more than 60% of your duties. Generally, you would apply for Short Term Disability (STD) if your physician recommends taking 6 months or less sick leave. If you expect to be off for longer, then you should apply for Long Term Disability (LTD) benefits.

However, insurance companies have not advised whether they will cover COVID-19 as an eligible illness or disability for short-term disability coverage. While many employers offer such benefits to entice and attract quality employees, what is not openly discussed is the high number of disability claims that get denied by insurers. Often, the process to qualify or continue to receive your benefits requires legal intervention by employment lawyers who also understand the law about peace-of-mind contracts.

Ontario Human Rights

The Ontario Human Rights Code prohibits employers from discriminating against you because of an illness or disability. If your employer suddenly fires you because of a COVID-19 quarantine or illness, you will require legal help. Contact us with urgency.

The circumstances of the COVID-19 pandemic remain new and untested, legally. However, the Ontario Human Rights Code may consider it a disability worthy of accommodation even after you have used up your sick leave entitlements. This accommodation could include extending protected unpaid leave to you if medically required.

Discrimination and Harassment

Your private medical information is sacrosanct and subject to the utmost privacy. The only details employers are entitled to receive from your physician is information pertaining to whether you can perform your duties and when you can return to work. However, the risk of a COVID-19 transmission at work makes disclosure of infection reasonable. In this case, your employer must keep your medical file private and secure. The announcement should in no way identify you personally and details should be limited to protect employee health and safety.

Furthermore, employers cannot harass you during your sick leave or after you return from it.  Sadly, in some corporate HR circles, an odious term exists to describe employees returning from sick leave: “Damaged Goods”. They might compare you to the person who filled in for you, consider you less productive and try to clean up shop. Such employers are most likely to bully and treat you poorly when you return, hoping to force you into quitting. Unwilling resignations constitute a constructive dismissal and they are completely against the law. In fact, the law requires your employer to make reasonable attempts to accommodate you, until you are able to get back to working at full speed.

Frustration of the Employment Contract

Some employers threaten employees on long term sick leave with termination for the frustration of your employment contract. Your employer may argue that the employment contract is impossible to fulfill, rendering it null and void. They could take the stand that your illness or disability is severe enough to prevent you from returning, permanently.

First of all, the law mandates that your employer satisfy a high burden of proof to successfully demonstrate the frustration of the contract. They have to prove it, you do not need to defend yourself. And furthermore, Canadian courts consistently side with employees in this matter. Under some circumstances, they ruled that employment relationships may not be frustrated even after 7 years of absence.

Refusing Unsafe Work

The law requires employers to maintain a safe workplace for all employees. Emergency and health care workers, considered frontline during an emergency such as the one underway, engage in hazardous work as an inherent nature of their jobs. They are not in a position to refuse to serve, as it would put the greater public at risk.

However, this is not the case for other jobs, both white and blue-collar. If you genuinely believe that a physical condition puts you at risk, you have the right to refuse work. Pre-COVID-19, this right focused on concerns over machinery and equipment. Today, it could cover an infection.

If you have reasonable cause to believe your health is at risk at work, you may report this to your employer and refuse to perform your duties. The law requires your employer to isolate you to a safe location and investigate the context of your refusal. If both you and your employer disagree about the risk, then you can escalate the matter to the Ministry of Labour, Occupational Health and Safety Branch for further investigation.

During this time, your employer cannot penalize, sanction or fire you for exercising your right to a safe work environment.

COVID-19 Layoffs & applying for employment insurance | Photo by Anna Shvets from Pexels

About The Author

Kim Sebag | Toronto Employment Lawyer

Kimberley Sebag, B.A., B.C.L., LL.B., is an employment lawyer with a practice dedicated to employee advocacy.

Lecker & Associates has successfully represented employees for over 35 years. If you believe your employer has breached your rights during the COVID-19 pandemic, contact us. We can assist you better than most.

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