Taking time off work when you are unwell should not put your job at risk. Yet many employees worry that it will. If you are trying to understand your rights regarding sick leave in Ontario, you are not alone.
Sick leave is one of several protected leaves of absence available to employees in Ontario, but it is also one of the most misunderstood. Ontario law provides important protections for employees who need time away from work because of illness, injury, or a medical emergency. The problem is that many employees do not know what those protections are. In some situations, employers misunderstand their obligations. In others, employees are disciplined, denied leave, or even terminated after taking time off for legitimate medical reasons.
Sultan Lawyers advises employees throughout Ontario on sick leave rights, workplace accommodation, and employer obligations. We regularly assist employees who have been denied leave, disciplined for taking sick leave, or terminated while on leave or shortly after returning to work. If you are unsure whether your employer is complying with the law, a flat rate consultation can help you understand your rights and your options.
The Employment Standards Act, 2000 (“ESA”) of Ontario establishes minimum sick leave protections for most employees in the province.
Employees become eligible for statutory sick leave after two consecutive weeks of employment. Once eligible, they may take up to three unpaid sick leave days during each calendar year because of a personal illness, injury, or medical emergency.
A calendar year means January 1 through December 31. The entitlement resets at the beginning of each year. The entitlement is not prorated. Even if you start work partway through the year, you still receive all three sick leave days.
Employers may count a partial day absence as a full sick leave day. If you leave work halfway through a shift because you are ill, your employer may treat that absence as one of your three statutory sick leave days.
The ESA also prevents employers from counting the same absence against multiple leave categories. If a day qualifies as sick leave and another protected leave, it can only be counted once.
Employers may ask for evidence that you were entitled to take the leave. However, they cannot require documentation that reveals your diagnosis or specific medical condition. Your medical information remains private.
Not every worker is covered by these provisions. Federal employees, independent contractors, and students employed through certain school-operated work programs are generally governed by different rules.
These ESA protections are minimum standards. Depending on your circumstances, additional legal protections may apply.
Many employees assume that sick leave is paid. Under Ontario law, that is not necessarily the case.
The Employment Standards Act, 2000 provides a minimum entitlement of three unpaid sick leave days per calendar year. Employers are not required to pay employees during those three statutory sick days.
That does not mean all sick leave is unpaid. Many employers offer paid sick days through employment contracts, workplace policies, benefit plans, or other compensation arrangements. Some employees have access to short-term disability benefits or other forms of income replacement when they are unable to work because of illness.
The ESA sets the minimum standard. It does not prevent employers from offering more generous benefits.
If your employment contract, workplace policy, or benefits plan provides paid sick leave and your employer refuses to honour those terms, that may raise legal issues separate from ESA compliance.
The key point is straightforward: Ontario’s statutory sick leave entitlement is unpaid. Whether your leave is paid depends on the terms of your employment and any workplace benefits available to you. In some circumstances, the Ontario Human Rights Code may require an employer to provide additional unpaid leave beyond the ESA minimum. We discuss that in more detail below.
Many employees assume their rights end once they use their three ESA sick days. In many cases, they do not. The Ontario Human Rights Code imposes separate obligations on employers to accommodate employees whose illnesses, injuries, or medical conditions qualify as disabilities under the Code.
This distinction matters. The ESA provides three unpaid sick leave days, but the Human Rights Code may require an employer to provide significantly more time away from work if a disability prevents the employee from working.
The duty to accommodate can take many forms. Depending on the circumstances, accommodation may include modified duties, reduced hours, remote work arrangements, gradual return-to-work plans, schedule changes, or extended unpaid leave.
Employers must continue accommodating employees unless doing so would create undue hardship. That is a high legal threshold. It does not mean inconvenience, frustration, or a preference for having an employee at work. Employers cannot simply decide that accommodation is difficult or disruptive. They must demonstrate that providing accommodation would create serious challenges that cannot reasonably be overcome.
Many employees do not realize these protections exist until they are denied additional leave or pressured to return to work. Employees who have been denied additional leave, pressured to return to work too early, or terminated while dealing with a medical condition may have rights under the Ontario Human Rights Code that extend well beyond the ESA minimum.
Some employees continue working while sick because they are afraid their employer will hold it against them. The ESA’s anti-reprisal provisions prevent employers from punishing employees for taking a protected sick leave.
An employer cannot discipline, suspend, demote, intimidate, threaten, or terminate you because you used a protected leave. Employees on sick leave generally remain eligible to participate in applicable benefit plans. Employers must continue making required contributions throughout the leave period.
Sick leave also does not stop the accumulation of seniority, service credits, or employment time. Your length of service continues to grow while you are on leave.
When the leave ends, you are generally entitled to return to the same position you held before the leave began. If that position no longer exists, you may have the right to return to a comparable position.
Many employees worry that taking sick leave will damage their standing with their employer. The law recognizes that employees sometimes need time away from work because of illness and provides important protections to ensure they can exercise those rights without fear of retaliation.
Employers can request reasonable proof that you qualify for sick leave. They cannot use that process to undermine your rights.
An employer cannot discipline, demote, suspend, or terminate an employee for taking protected sick leave.
An employer cannot require medical documentation that reveals a diagnosis or specific medical condition.
An employer cannot treat a protected sick leave as an unauthorized absence or use it as grounds for discipline.
An employer cannot count protected sick leave against an employee’s performance record in a way that disadvantages them when decisions about promotions, compensation, or advancement are made.
An employer also cannot interfere with benefit plan participation or required employer contributions while an employee is on a protected leave.
Employers that fail to comply with these obligations may expose themselves to ESA complaints, Human Rights applications, and, in some cases, wrongful dismissal claims.
Many employees only start researching sick leave rights after losing their job.
Being on sick leave does not make an employee immune from termination. Employers may still terminate employment in certain circumstances. However, the reasons for the termination and the timing of the decision often matter.
When an employee is terminated because they took sick leave, requested accommodation, or experienced a disability-related absence, the employer may face significant legal exposure.
A termination during sick leave, shortly after a return to work, or while accommodation is being discussed may raise serious concerns under employment standards and human rights law.
In some circumstances, the employee may have grounds to pursue a claim under the Ontario Human Rights Code. In others, the facts may support a wrongful dismissal claim. Sometimes both issues arise together.
If you were terminated while on sick leave, or if you believe your termination was connected to a medical condition or accommodation request, it is important to seek legal advice before signing a release or accepting a severance package.
Employees are often asked to sign termination documents quickly. Before you do, make sure you understand whether your sick leave or medical condition may affect your legal rights.
Sultan Lawyers advises employees who have been denied sick leave, disciplined for taking time away from work, demoted after returning from leave, or terminated in circumstances connected to illness or disability.
We also advise employees who believe their employer is failing to comply with obligations under the Employment Standards Act, 2000 or the Ontario Human Rights Code.
Our firm acts for both employees and employers. That perspective provides valuable insight into how workplace disputes develop, how employers assess risk, and how leave-related issues are typically addressed.
Sultan Lawyers has been recognized by Best Lawyers and regularly advises employees on workplace accommodation, leave entitlements, disability-related employment issues, and termination disputes. We understand that many people seeking advice about sick leave are already dealing with health concerns, financial uncertainty, and questions about their future at work.
The process is straightforward. We begin with an intake review, followed by a flat rate consultation. After reviewing your circumstances, we provide practical legal guidance and discuss the options that may be available to you.
If you are preparing to take sick leave, returning from leave, or dealing with an employer who may not be respecting your rights, speaking with an employment lawyer can help you make informed decisions. Learn more about our team and how we assist employees across Ontario.
Sick leave is only one of several protected leaves of absence available to employees in Ontario. Depending on your circumstances, you may have additional rights under other leave provisions or the Ontario Human Rights Code.
If you have been denied sick leave, disciplined for taking it, or terminated in circumstances connected to your leave, contact Sultan Lawyers. We offer flat rate consultations designed to give you a clear understanding of your rights and your options. Call us at (416) 214-5111 or contact us online.
The ESA provides a minimum entitlement of three unpaid sick leave days per year. Employers are not required to pay employees during those statutory sick days. However, many employers provide paid sick leave through employment contracts, workplace policies, collective agreements, or benefit plans. Whether your leave is paid depends on the terms of your employment.
The ESA prohibits employers from penalizing employees for taking protected sick leave. Discipline, suspension, demotion, or termination connected to the use of protected leave may violate Ontario employment law. If you were terminated while on sick leave or shortly after returning to work, the circumstances should be reviewed carefully because human rights issues and wrongful dismissal claims may arise.
Under the Employment Standards Act, 2000, most employees become eligible for three unpaid sick leave days per calendar year after completing two consecutive weeks of employment. The entitlement is not prorated, which means employees hired partway through the year still receive the full three days. Additional rights may arise through employment contracts, workplace policies, benefit plans, or the Ontario Human Rights Code.
Yes. Employers may require reasonable evidence that you were entitled to take sick leave. However, they cannot require documentation that reveals your diagnosis or specific medical condition. In many cases, a note confirming that you were unable to work for medical reasons is sufficient without disclosing private medical information.
Employees in Ontario are entitled to a minimum of three (3) personal illness days per calendar year under the Employment Standards Act. Employers must accommodate their employees’ needs to take sick leave and cannot fire an employee for requesting or using the days.
Beyond employment standards, the Human Rights Code applies and requires an employer to provide sufficient leave to the employee as may be medically required, unless to do so would cause the employer ‘undue hardship’. Proving ‘undue hardship’ is, however, difficult and requires an employer to prove that they have done everything they can to support the employee and that any further support would result in significant difficulty and/or expense to the employer. For this reason, an employer is at serious risk of a human rights claim if they fire an employee for exercising their legal right to take sick leave. Furthermore, it is important to note that, while an employer cannot fire you for taking too many sick days, they may terminate your employment while you are on sick leave, provided that the reasons for termination are unrelated to the illness. It is strongly advised that employees should seek legal advice in any circumstance involving negative treatment, including being fired, in relation to a leave of absence for illness.
For further details to determine entitlement in your specific case contact a reliable and well-informed employment lawyer. If you believe your termination is a reprisal for taking a medical leave and are seeking legal advice with respect to possible remedies, please contact Toronto employment lawyers, Sultan Lawyers at 647-955-4302 or via email to mlahert@sultanlawyers.com.
The simple answer is yes. Courts have generally held across Canada that discharge is an appropriate penalty for employees making false medical claims and/or lying about being sick. The reason is that false claims are deemed to take advantage of the employer’s reliance on an employee’s good faith, and therefore courts and arbitrators generally take a strong stance and impose harsh penalties to deter other employees from doing the same. Having said this, termination for cause is considered a harsh penalty in employment law and therefore it is almost always worth a review with a qualified employment lawyer to determine how to respond if you ever find yourself in this situation.
No, your employer is not required to pay you while you are on sick leave. In Ontario, employees are entitled to three (3) full days of unpaid sick leave every calendar year under the Employment Standards Act. However, an employer may be required to pay an employee on sick leave where the terms of the employment agreement provide for paid sick leave. Employees can apply for Employment Insurance sickness benefits, or for more prolonged illnesses, short-term and long-term disability benefits (which may be a part of an employee’s benefits package). For further details to determine entitlement in your specific case contact a reliable and well-informed employment lawyer.
No. It is not for your employer to determine whether you can work or not. An employer cannot require you to do something that is contrary to the opinion of your doctor. Regardless of the amount of time your doctor prescribes, your employer must give you that time off. Furthermore, your employer cannot engage in recourse by threatening you for taking time off, disciplining you for your medical leave, or treating your medical leave as a resignation.
Pursuant to the Employment Standards Act (“ESA”), most employees can take up to 3 sick days of unpaid job-protected leave per year for medical reasons including personal illness, injury or medical emergency. Whether the employee or external factors beyond their control caused the illness, injury, or medical emergency is irrelevant. An employee becomes entitled to 3 sick days per year after working for their employer for at least 2 consecutive weeks.
The Human Rights Code extends beyond employment standards. It mandates employers to grant medically necessary leave to employees. This is required unless it causes the employer ‘undue hardship’. However, proving ‘undue hardship’ is challenging. Employers must demonstrate they have provided all possible support. They need to show that any additional support would significantly burden them or incur substantial expense.
Of course, sick days are often unanticipated. Regardless of this fact, employers have a duty to accommodate an employee’s legitimate request to take sick leave. While unexpected leaves can be a source of frustration for employers, it is illegal for the employer to fire the employee simply because of the inconvenience caused to the business as a result of the sick leave.
Courts have specifically made it clear that if the employee’s sick leave plays any role in an employer’s decision to terminate the employee’s employment, an employer can be subject to significant liability from an employment standards perspective (i.e. wrongful dismissal) and, potentially, as a result of a violation of human rights protection.
Generally, an employer cannot directly ask about an employee’s diagnosis when they are taking sick leave; however, the employer is entitled to information that would assist the employer with determining the following:
For this reason, if you have any concerns regarding requests for information in relation to a medical absence, then it is highly advisable to seek legal advice with an experienced employment lawyer. For further details to determine entitlement in your specific case contact a reliable and well-informed employment lawyer. If you have any concerns regarding requests for information in relation to your medical leave and are seeking legal advice, please contact Toronto employment lawyers, Sultan Lawyers at 647-955-4302 or via email to mlahert@sultanlawyers.com.
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