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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. 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.

Human Rights Code on sick leave

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.

Note: This content is for informational purposes and may not reflect the specific legal requirements of your region. Always consult a legal professional for advice on employment law.

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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