Employees are often unsure about their workplace rights when illness, injury or other health problems force them to miss work. This is particularly the case for non-unionized employees, who don’t have union stewards or other representatives to consult with.

The Employment Standards Act, Ontario Human Rights Code and the relevant employment contract (if any) will likely have an impact on a non-unionized employee’s rights when unable to attend work due to disability or illness. Each of these areas are discussed below.

Although we do not practice personal injury law (for example, seeking compensation after an accident), we handle disability and accommodation issues at the workplace. The need for accommodation may stem from workplace or non-workplace related injuries and illnesses.

Employment Contract

If illness or disability requires absences from work, an employee should read their employment contract, which may provide a certain number of paid or unpaid sick days. The employment contract may also specify whom the employee should contact when unable to attend work and the kind of documentation needed (letter from doctor, etc.).

Employment Standards Act

The Employment Standards Act provides workers with a host of employment rights, including such things as minimum wage, public holiday pay, vacation pay and a variety of leaves (pregnancy, parental, reservist, etc.). The Act states that employees are entitled to leave for “personal emergencies”, which includes illness, injury or medical emergencies. At a minimum, most non-unionized workers in Ontario are entitled to ten days of unpaid leave each year due to illness, injury and certain other emergencies and urgent matters. This type of leave is called “Personal Emergency Leave” in the Act. Practically speaking, this means that an employer must allow employees to take up to ten days of leave due to illness, injury or medical emergencies. It also means that an employer cannot demote, fire or discipline an employee for taking this type of leave.

Personal emergency leave only applies to workers who are employed for employers who regularly hire fifty (50) or more employees. Also, keep in mind that the Act does not require that employers pay their employees during personal emergency leave.

In addition to illness, injury or medical emergencies, Personal Emergency Leave also applies to death, illness, injury, medical emergency or other urgent matters relating to family members (spouse, parent, child, grandparent, grandchild, brother/sister, spouse of an employee’s child, or a relative who is dependant on the family).

Even if an employee started half-way through the year, he or she is still entitled to ten days of personal emergency leave for the calendar year. Generally, an employee must provide his or her employer with notice that they are taking personal emergency leave. If the employee must begin taking the leave before providing notice, he or she must provide notice as soon as possible. Notice does not have to be in writing; it can be provided orally.

An employer can require that an employee taking personal emergency leave provide evidence that they are eligible to take the leave. However, this documentation must be reasonable in the circumstances.

Employers in some industries are exempted from the responsibility of providing personal emergency leave. However, if personal emergency leave is applicable, this right cannot be taken away or reduced by an employment contract or other agreement between an employee and employer.

Ontario Human Rights Code

Employers who fall under the jurisdiction of the Ontario Human Rights Code are prohibited from discriminating against employees on a variety of grounds, including disability. Illnesses are considered disabilities under the Code. Individuals with disabilities have the right to have their disability accommodated to the point of undue hardship. However, if a disabled employee cannot perform the essential duties of a job (even with accommodation) or where accommodation would result in undue hardship (inability of other staff to work or financial ruin to the company), a decision to terminate an ill or disabled employee would not be contrary to the Code.

Where an employee is forced to take time off due to illness or disability, human rights law states that it would be discriminatory for an employer to react by terminating him or her on this basis. An employer will be expected to assess employees individually and evaluate the circumstances in light of the undue hardship standard. This means, for example, that an automatic termination (or discipline) provision in an employment contract would be invalid. Such a provision might state that an employee who is absent for fifteen days per year (for any reason) will be terminated (or would lose certain other rights).

Where an individual is required to miss work due to illness or disability, both employer and employee have responsibilities to fulfill. For example, the employee is responsible for notifying the employer that his or her absence is related to disability or illness and informing the employer that he or she requires accommodation (if any) on return to work. The employer is responsible for determining the employee’s essential and non-essential duties and attempting to accommodate the employee so that he or she is able to fulfill their essential duties (non-essential duties can be re-assigned to other staff).

When it comes to medical information, an employer must act reasonably and is restricted with respect to the information that they can require from an employee or treating physician. For example, an employer cannot ask for an employee’s diagnosis, but will be within its right to ask for information about an employee’s restrictions so that they can assess the employee’s needs and provide accommodation. Similarly, an employer cannot ask an employee to identify the medications that he or she has been prescribed (which could reveal the diagnosis), but could ask about potential side-effects from prescribed medication.

When an employee is on leave due to disability, they will generally have a right to return to work. However, this is not always the case. When an employee has been on disability for a long period of time and has an uncertain prognosis, it will be possible for the employer to have fulfilled their duty to accommodate. As a general rule, whether an employer fulfills its duty to accommodate depends on the ability of the employee to perform the essential job duties, considering the unique circumstances of every absence and the nature of the employee’s condition. The predictability of absence, both in terms of when it will end and if it may recur, and the frequency of the absence will also be relevant. It is more likely that the duty to accommodate will continue with a better prognosis, regardless of the length of absence.

Ultimately, human rights law requires that the employer and employee act reasonably and work together cooperatively to find an appropriate accommodation. Since human rights law is focused on assessing individual circumstances and conditions, the particular experiences in any given case will determine whether an employer and employee have fulfilled their responsibilities in the accommodation process.

contact us for more information and advice on your particular matter.