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Sick employees left to twist in the wind?

sick leaveThe recent increase to Employment Insurance benefits for Compassionate Care Leave from 8 weeks to 28 weeks (with many provinces following suit with increases to the statutory leave period for compassionate care under employment standards legislation) has given most employees in Canada the ability to care for seriously ill loved ones without jeopardizing their employment for up to 28 weeks. In addition to compassionate care leave most provinces also provide for critically-ill child care leave and some family responsibility leave enabling employees to cover the periods of illness of family members. So why don’t most provinces offer the same job protection to sick employees?

With the exception of Manitoba, Saskatchewan, Quebec and federally-regulated employees, no employee is given the same statutory protection for their own long-term serious illness or injury.

Effective April 1, 2016, Manitoba has implemented a new statutory leave in its Employment Standards Code to include a new provision for  for employees who have been employed by the employer for at least ninety (90) days. This leave is an unpaid and job-protected leave for employees who are seriously injured or ill of up to 17 weeks in a 52 week period.

Similarly, Quebec provides up to 26 weeks’ leave in a 12 month period for the employee’s sickness or accident, Saskatchewan prohibits discrimination against an employee who is absent due to a serious illness or injury for up to twelve weeks in a fifty-two week period, and the federal Labour Code protects employees for illness or injury-related absences for up to 17 weeks.

But all other provinces have little or no protection for seriously ill or injured employees in their employment standards legislation:

  • In Ontario, employees are entitled to 10 personal emergency days which can be used for their own sickness, however, such leave is only required of employers with 50 or more employees. Ontario’s family medical leave and family caregiver leave (compassionate care leave) are only for the care of qualifying family members.
  • British Columbia provides 5 days’ leave for caring for family members only.
  • Alberta has no leave save and except compassionate care leave.
  • New Brunswick requires 5 days’ sick leave for employees and 3 days for family responsibility.
  • Newfoundland and Labrador provides 7 days per year for personal sick or family responsibility reasons.
  • Nova Scotia provides 3 days for family member sickness or medical/dental appointments.
  • Prince Edward Island provides 3 days for sickness of family members.
  • Yukon Territory protects sick or injured employees from employer reprisals for up to 12 days (based on months of employment and adjusted for other absences taken).
  • Northwest Territories provides 5 days in 12 months, with the possibility to extend with medical documentation.
  • Nunavut appears to have no sick leave provisions for employees.

In the absence of legislated protections, the only thing that prevents employers from terminating or otherwise discriminating against employees who have long-term illnesses or injuries is the provincial or territorial human rights protection against discrimination on the basis of disability, or the common law of wrongful dismissal. In the human rights context, not only would the employee’s illness have to meet the definition of “disability”, but human rights protections are complaint-based tools which are only useful after there has been discrimination against an employee and which can take years to resolve or adjudicate. A wrongful dismissal claim is similarly reactive, expensive and time consuming. It would be much more effective to protect employees through employment standards legislation with bureaucratic enforcement and complaint mechanisms for employers who breach their legislative obligations. It would also be helpful to employers to know how much sick leave they should reasonably provide to employees, and the terms and conditions of such leave, without having to navigate the waters of human rights or wrongful dismissal complaints.

As much as this is a call to legislators to protect sick employees in the same way as they have protected employees’ family members, it is also a reminder that employers do not have to wait for legislation, and can still implement long-term illness and injury leave policies allowing employees the time away from work required to recover and provide long-term disability benefit coverage in employee benefit plans, as many employers already do.

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HR PolicyPro

Look for a future topic and sample policy dealing with Long-Term Leave for Serious Illness and Injury in the Human Resources PolicyPro published by First Reference. The comprehensive and easy-to-use Human Resources PolicyPro® is a practical and reliable HR reference manual to manage your personnel and develop HR policies and procedures to comply with employment and labour laws across Canada, including the federal jurisdiction. Try it for 30-days free.

Michele Glassford

President and Managing Editor at DRH and Lawyer at MacKinnon Law Associates
Michele Glassford, is a lawyer, researcher and policy analyst with a background in employment and labour law.In addition to a part-time law practice in Stoney Creek, Ontario, Michele has worked in the field of labour adjustment for the Health Sector Training and Adjustment Program and has been a Researcher for the Canadian Broadcasting Corporation. Michele also holds the position of President and Managing Editor at D.R. Hancocks & Associates Inc., author of the Human Resources PolicyPros. Read more
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