How to Comply With Canada’s Cornucopia of Sick Leave Laws

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Sick leave presents a unique challenge for Canadian employers that wish to manage absenteeism while complying with their legal obligations. The relevant rules vary between provinces and may involve multiple statutes within a province, such as employment standards legislation, human rights and/or antidiscrimination legislation, and workers’ compensation legislation.

Canada does not have a single set of rules governing sick leave, but the legislation in most provinces share a number of common features:

  1. All Canadian provinces provide employees with a specified number of days—as either sick leave or as general “personal emergency leave” or “family leave”—that can be used by the employee when he or she is ill, or in some cases, when a qualifying family member is ill.
  2. Some provinces distinguish between leaves for personal illness and those taken to care for family members, but not all do. Some provinces also make specific provision for organ donation leave.
  3. The range of sick leave entitlement is quite broad, ranging from 3 days of sick leave in Manitoba to up to 26 weeks in Quebec.
  4. Sick leave is generally unpaid in Canada, but employees may qualify for benefits under the Canada Pension Plan or Employment Insurance in certain cases of long-term absence.
  5. Qualification criteria required for sick leave varies by province but may include factors such as (1) the size of the employer, (2) how long the employee has been employed, and (3) the seriousness of his or her illness.
    1. For example, in Ontario, all employees of employers that regularly employ 50 or more employees are entitled to 10 days of personal emergency leave per calendar year. Personal emergency leave can be used for the employee’s own illness, injury, or medical emergency, or for the death, illness, injury, or medical emergency of a qualified family member (or another urgent matter concerning a family member). This 10 day entitlement applies upon commencing employment with a qualifying employer; there is no minimum service requirement.
    2. In New Brunswick, all employers must provide up to 5 days of sick leave to employees who have worked for 90 days or longer for the same employer.
    3. In Saskatchewan, an employee with 13 weeks of service for the same employer is entitled to protection from dismissal or other adverse treatment because of an absence due to an illness not exceeding 12 days. But, in the case of a serious illness or injury, an employee is entitled to 12 weeks of protected leave. 
  6. Most provinces have separate, designated types of leave for caregivers of seriously or terminally ill family members; these are often called “compassionate care leave” or “family medical leave.” The regulations concerning such leaves tend to provide for longer periods of time that an employee may be absent from work, but they also have protections in place to make sure that the leave is taken only by qualified employees (such as the requirement that an employee obtain a medical certificate from a treating physician).
  7. Even once employees have exhausted their entitlements to sick leave, employees whose absences are due to a disability are protected by human rights legislation. Since many illnesses or injuries that would cause an employee to miss work for longer than the specified number of sick days could constitute a disability, this presents a further restriction on an employer’s ability to discharge a sick employee for his or her absences. And although the law is not as clearly developed for caregivers, there is the potential that a caregiver to a sick family member could claim discrimination based on his or her “family status” or “marital status” if he or she were terminated.
  8. If an employee is absent due to a work-related injury or occupational illness as defined under provincial workers’ compensation legislation, then different rules will apply: The employer in such a situation would be subject to statutory return-to-work rules and other regulations under the province’s workers’ compensation legislation.

Canadian employers may want to review their sick leave policies to ensure that they comply with governing laws in the provinces in which they operate. Even if the employer determines that is in compliance with relevant sick leave laws, it must also consider its obligations under human rights and workers’ compensation laws before disciplining or discharging an employee for absenteeism.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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