Tuesday, 30 October 2012

Chronic Absenteeism: Employee Rights

(c) istock/Highwaystarz-Photography

Every year Forbes magazine releases a list of the most ridiculous excuses for calling in sick. Other publications do similar things. In its list from 2011, Forbes listed amongst its favourite worst reasons:

One employee said he couldn’t make it to work because his 12-year-old daughter stole his car. Another called in sick with a headache from going to too many garage sales. One employee claimed he had caught a cold from a puppy.

While lists like these can be amusing, they highlight a more serious issue: employee absenteeism. According to the same Forbes article:

CareerBuilder does an annual survey on absenteeism, and [in 2011] the poll reached out to more than 4,300 workers and 2,600 employers. It revealed that 29% of employees have skipped at least one work day this year by claiming to be sick when they weren’t.

The study raises two important questions: What are an employee’s rights to sick days under Ontario law, and what are an employer’s rights? This post will focus on an employee’s rights and responsibilities. (For a review of employer's rights, please see this post.)

Employees' Rights and Responsibilities

Contrary to popular belief, there is no statutory entitlement to paid sick days. Although most employers do provide their employees with a certain amount of paid days off for sick leave, the Ontario Employment Standards Act, 2000 does not actually require that they be provided.

Rather, section 50 of the ESA provides that:

(1) An employee whose employer regularly employs 50 or more employees is entitled to a leave of absence without pay because of any of the following:

  1. A personal illness, injury or medical emergency.
  2. The death, illness, injury or medical emergency of an individual described in subsection (2).
  3. An urgent matter that concerns an individual described in subsection (2).

(2) Paragraphs 2 and 3 of subsection (1) apply with respect to the following individuals:

  1. The employee’s spouse.
  2. A parent, step-parent or foster parent of the employee or the employee’s spouse.
  3. A child, step-child or foster child of the employee or the employee’s spouse.
  4. A grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee’s spouse.
  5. The spouse of a child of the employee.
  6. The employee’s brother or sister.
  7. A relative of the employee who is dependent on the employee for care or assistance.

(3)An employee who wishes to take leave under this section shall advise his or her employer that he or she will be doing so.

(4) If the employee must begin the leave before advising the employer, the employee shall advise the employer of the leave as soon as possible after beginning it.

(5) An employee is entitled to take a total of 10 days’ leave under this section in each calendar year.

(6) If an employee takes any part of a day as leave under this section, the employer may deem the employee to have taken one day’s leave on that day for the purposes of subsection (5).

(7) An employer may require an employee who takes leave under this section to provide evidence reasonable in the circumstances that the employee is entitled to the leave.

For some employees the above will cover their minimum rights, provided that the employee works for an employer who employees 50 or more employees. The ESA is silent with respect to: (a) those who work for smaller organizations, and (b) those who require more than 10 days off per year.

For those working for smaller organizations the implications of the ESA’s silence are somewhat suspect. What is known is that the employer is not obligated to pay the employee for the time missed from work, and it can also be assumed that the employer cannot physically force the work. But does that mean that the employer can simply fire the worker because he or she calls in sick? I would submit that, for the analysis provided below, the answer is probably not.

Chronic Absenteeism Due to Illness

According to an article published in the Globe and Mail workplace absenteeism is on the rise in Canada.

Within the public service, a main employer in Ottawa, the government’s disability claims have doubled since 1999 and half are for mental health claims. So far this year, claims are nearly 13% higher and it’s expected mental health issues, such as depression and anxiety, are driving the increase. The issue is serious.

From the employee’s perspective a few things are known. First, in the case of those working for employers governed by Ontario law (i.e. most employees other than those working for the federal civil service, banks, railroads and certain other employers), the Ontario Human Rights Code provides that:

Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

“Disability” is defined within the Human Rights Code as:

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997.

For those working in federally-regulated workplaces similar provisions exist pursuant to the Canadian Human Rights Act.

Practically speaking, what this means is that an employer cannot fire someone because he or she has a disability; most chronic illnesses will be regarded as a “disability.”

If an employee is fired, then in any legal case that follows all the employee must demonstrate is a prima facie case that the reason s/he was fired was because of the disability. Note that disability does not need to be the only reason for the termination of employment: Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252.

If the employee can make out the prima facie case, then the employer must then demonstrate that, either (a) the disability was not the reason for termination or (b) that it attempted to accommodate the employee to the point of undue hardship but was unable under the circumstances. If the employer is unable, then the Human Rights Tribunal may award damages to the dismissed employee. Pursuant to section 46.1 of the Ontario Human Rights Code, an employee may ‘tack on’ a violation of his or her human rights to a wrongful dismissal claim.

Requirement to Provide Sufficient Evidence

While it is all well and good to say that an employer cannot fire an employee because of the employee’s illness, inherent within that statement is the requirement that the employee has an obligation to demonstrate to his or her employer that s/he is legitimately sick. This obligation can include obtaining (at the employer’s expense) medical certificates from one’s own doctor, and, in exceptional cases, seeing a doctor selected by the employer. Employers cannot be vindictive in their approach, however.

Takeaways for those with Labour Pains

The issues of absenteeism, illness, and disability – especially when same arises from the workplace itself – are topics of ever-increasing importance. For employees an understanding of one’s rights and responsibilities can be critical to ensuring that one receives all the benefits to which one is entitled and towards which one has contributed throughout employment.

Because the areas are complex it is always recommended that persons affected by such situations seek professional legal advice. The employment lawyers at Kelly Santini LLP would be happy to assist.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.

Sean P. Bawden is a partner with Kelly Santini LLP, located in Ottawa, Ontario, Canada. He practices in the areas of employment law and civil litigation. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College in Ottawa.

To subscribe to Labour Pains enter your email address:

Delivered by FeedBurner

--

As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

8 comments:

  1. What about employers that require that their employees provide a sick note if they are absent on a Monday or a Friday? Is this allowed? My Ottawa employer requires this. While I appreciate the concern about calling in sick on a Friday or Monday, I feel it imposes an unfair burden on the employee. Frankly, and because of the hassle of obtaining a doctor's note, I'll often go into work on a Friday or Monday...even if I have the flu.

    ReplyDelete
  2. It would be a function of your employer's policy. Without reviewing it, and the circumstances of how it was brought into being, it's really not prudent for me to comment. Please feel free to contact me via email or phone to discuss this matter further.

    ReplyDelete
  3. If I work for a small business and miss days to due illness with a dr note can I be suspended or fired?

    ReplyDelete
    Replies
    1. The answer is, it depends. There is a legal duty on the employer to accommodate an employee's illness to the point of undue hardship. Whether your employer is doing that is an opinion that can only be given after a review of the facts.

      I would be happy to be of service and can be reached at sbawden@kellysantini.com

      Delete
  4. We have a housekeeper/nanny who has called in sick 46/155 potential work days (we are including her paid stat days as worked days). At the beginning of a big spate of sick days over the past 3 months, we were planning to sit down and talk to her about shaping up in a week or losing her job, because she was doing a terrible job anyhow. She also is terrible about reporting sick days, and we have gone a whole week not knowing whether she would show up to work. We really need her out of our lives, but are struggling to figure out how to fire her since she is always sick. We do have documentation of poor performance. What can we do?

    ReplyDelete
    Replies
    1. The answer is, it depends. There is a legal duty on employers to accommodate an employee's illness to the point of undue hardship. Whether you have done that is an opinion that can only be given after a review of the facts.

      I would be happy to be of service and can be reached at sbawden@kellysantini.com

      Delete
  5. I will be needing a few half days Off work per month due to IUI treatment. What are my legal rights to approach my employer to have this request approved? I work in a office with just over 20 employees.

    ReplyDelete
    Replies
    1. The answer is, it depends. There is a legal duty on employers to accommodate an employee's illness to the point of undue hardship.

      I would be happy to be of service and can be reached at sbawden@kellysantini.com

      Delete