Wednesday, November 30, 2011

Back to Basics: Sick Leave

Larger employers and their employees usually don't have too much trouble with sick leave.  They have policies and processes in place for taking sick leave, often with short-term and long-term disability insurers who will bear the direct costs to employees, internal HR staff to facilitate the return to work, and a sufficient workforce to be able to fill in any gaps caused by extended or unforeseen absences.

But start looking at small and mid-size employers, and you get myriad issues.  I've seen plenty of employers with no written contract and no policy setting out entitlements to sick pay, but whose practices are to pay salaried employees for the occasional sick day, etc...until they start running into more frequent or longer-term absences.  Then several questions start to arise:
  1. Must an employer continue to employ an individual despite extended or frequent absences?
  2. When an employee is able to perform only a part of their regular duties, how does this interact with sick leave?
  3. Must an employer pay a salaried employee who is on sick leave?
Absenteeism is a difficult issue all around, because it's a pretty fundamental aspect of the employment contract that the employee has to show up.  That being said, where an employee is absent frequently or for an extended period of time due to a medically documented disability, an employer usually can't regard such absences as being misconduct.  Indeed, not only is a "for cause" termination off the table in such cases, but in many such cases even a "not for cause" termination (on notice or pay in lieu thereof) would be illegal, in violation of the Human Rights Code.

An employer must reasonably accommodate disability up to the point of "undue hardship".  Undue hardship is a high threshold.  We aren't talking about minor inconveniences or expenses; what many employers find difficult is the understanding that the issue will be viewed from the employee's side as well:  If the employer is entitled to refuse to accommodate, in many cases this will have the effect of terminating the employee's employment, just because they have been afflicted by a disability.  This is a big deal, with the result that courts and tribunals will expect an employer to bend over backwards to avoid this consequence.  Thus, hardship has to be very significant before it will become "undue".

Where an employee has been absent for extremely lengthy periods of time, and there can be no reasonable expectation of a return to work in the foreseeable future, this can sometimes generate 'frustration' of the contract, entitling the employer to terminate it.

The duty to accommodate is a double-edged sword.  An employer is obligated to reasonably accommodate an employee's medical needs:  If I need light duties and reduced hours, the employer should require only light duties and reduced hours (unless doing so would generate "undue hardship") for as long as it is necessary.  But on the flip side, I can be required to accept accommodated duties.  If I get fatigued and so can only work 4 hours per day, the employer is entitled to insist that I work those 4 hours per day.  I can't say, "Well, I'd rather just stay home on sick leave" if the employer is offering modified duties.  To that end, an employer is entitled to insist on being made aware of the employee's functional limitations.

However, an employee can't insist on being paid for time not at work, unless they're contractually entitled to do so.  If there's a short term disability insurer, the employee can seek money from there.  If there's a paid sick bank, of course, the employee can draw against it.  But in the absence of such things, an employee should not expect the money to keep coming in when they aren't going to work, and should consider looking into eligibility for EI sick benefits.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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