Leaves of Absence, Pt 2: Understanding Sick Leave and the Duty to Accommodate, A Human Rights Perspective

Welcome to the second installment of our blog series on Leaves of Absence by Sultan Lawyers. If you haven’t already, make sure to check out our previous blog post on Responsibilities During a Leave of Absence here. In this post, we will focus on sick leave and the duty to accommodate, providing essential information for both employees and employers.

Understanding Sick Leave

Taking a temporary leave of absence from your employment to manage your health can be daunting.  As mentioned in our last blog post, employees are entitled to unpaid leave for personal illness, injury, or urgent matters involving certain family members.

Under the Ontario Employment Standards Act (“ESA”):

• Sick leave is available for employees in cases of personal illnesses, injuries, and medical emergencies.
• All employees, regardless of if they are employed full or part time, have the right to three (3) full days of job-protected unpaid sick leave per calendar year.
• The entitlement of three sick days cannot be pro-rated.
• Unused sick leave days cannot be carried over to the following calendar year.

The ESA outlines the statutory minimum and employment contracts may grant greater protections than three days.

Duty to Accommodate: Protecting Human Rights

There may be situations where an employee requires more than three (3) days off due to illness. In such cases, employees may have the right to request accommodation based on a disability. The Ontario Human Rights Code (the “Code“) protects employees from discrimination due to disability, which encompasses various physical disabilities, infirmities, malformations, or disfigurements caused by injury or illness.

The Code places a legal obligation on employers to accommodate a disabled employee to the point of “undue hardship”. Meaning an employer cannot legally force an employee to perform duties that would adversely affect their health, nor can an employer punish an employee for failing to perform those duties.

Accommodations should be viewed as a cooperative process and a shared responsibility between the employer and the employee.

Accommodations and Corresponding Medical Documentation

If an employee is injured or ill and requires workplace accommodations, they are legally expected to inform their employer. When asserting a disability, employees may be asked to provide supporting documentation to corroborate an employee’s claim and provide additional details about their limitations and restrictions.

Typically, a medical note will indicate the need for medical leave or specify necessary restrictions and accommodations. These restrictions can range from being unable to work at all to more specific accommodations related to work, such as a gradual return, assistive equipment, or breaks, among others.

Unless it is crucial to assist the employer in exploring accommodation options, employees are not obligated to disclose their diagnosis, disability, symptoms, or treatment when providing medical information.

However, employers are entitled to know certain aspects of the medical condition and how it will impact the employee’s ability to perform their job duties. Employers need sufficient information to assess an employee’s needs, review accommodation options, and provide appropriate feedback.

If an employer is providing accommodation, they may request specific details regarding an employee’s capabilities during their recovery. This is usually done through a functional abilities form. In some cases, conditions may need to be reassessed, and if so, follow-up documentation should be provided for each reassessment.

It’s important to note that while an employer must accommodate, employees do not have the authority to choose their accommodations or modifications. Instead, the employer must ensure compliance with the employee’s restrictions.

Examples of Accommodations

While each accommodation request is in an individual evaluation, some examples of possible accommodations may include:

• Allowing the employee to have a flexible schedule for work.
• Modifying the employee’s job duties to better suit their needs.
• Adapting policies to accommodate the employee.
• Making changes to workstations, such as implementing ergonomic adjustments, providing specialized chairs or back support, and so on.
• Supplying specialized adaptation or assistive devices for computers and accessible technology.
• Offering alternative means of communication for the employee.
• Providing additional training to support the employee.
• Granting short-term and long-term disability leave as needed.
• Considering job bundling and unbundling options to accommodate the employee.
• Exploring alternative work arrangements for the employee.

If an employee feels that they are not being accommodated, resulting in a violation of their rights, they may initiate a Human Rights Application.

Takeaway

Employees are entitled to three (3) days of job-protected sick leave. If an employee requires additional time off due to illness, it may be considered a request for accommodation based on a disability. Employers have a legal obligation to accommodate employees up to the point of undue hardship. Employees should provide sufficient information to inform employers about the requested accommodation and guide them on the appropriate course of action. Remember, the accommodation process is a shared responsibility between employers.

Whether you are an employee or employer, our team of experienced employment lawyers at Sultan Lawyers, are here to provide comprehensive guidance regarding your rights and entitlements during the entire leave of absence process. Our dedicated team of advocates are committed to representing your best interests when circumstances require time away from work. Reach out to us via call us at 416-214-5111 or here. for a complimentary callback or a flat-rate consultation. We look forward to assisting you.