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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. It is irrelevant whether the illness, injury or medical emergency was caused by the employee or external factors beyond their control. The entitlement to 3 sick days per year is triggered once an employee has worked for their employer for at least 2 consecutive weeks.

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.

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.

If you believe you have been wrongfully dismissed as a result of your sick leave and are seeking legal advice, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

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