I feel that some of my employees are abusing the new law on paid sick leave.
What are my rights as an employer?
It has now been well over 2 years since Covid-19 disrupted lives around the world. With the government-issued restrictions starting to ease across the province, employers may be left wondering what rights and obligations continue to apply in the post-Covid era.
Paid sick leave will be one of them, since it was not brought into force on Covid-19 concerns.
Let's take a closer look at the section under our provincial Employment Standards Act:
Part 6 — Leaves and Jury Duty
Illness or injury leave
(1) After 90 consecutive days of employment with an employer, an employee, for personal illness or injury, is entitled, in each employment year, to
(a)paid leave for up to the number of days prescribed, and
(b)unpaid leave for up to 3 days.
(2) If requested by the employer, the employee must, as soon as practicable, provide to the employer reasonably sufficient proof that the employee is entitled to leave under this section.
(3) Subject to subsection (4), an employer must pay an employee who takes leave under subsection (1) (a) an amount in money equal to at least the amount calculated by multiplying the period of the leave and the average day's pay, where the average day's pay is determined by the formula
Basically, under section 49.1 of our provincial Employment Standards Act, an employee is entitled to a prescribed number of days (currently, five days) for paid leave if she is injured or sick. There is sparse guidance in caselaw on how to interpret some of the language and how they may apply to certain scenarios.
However, the wording is clear enough to know that the sickness or injury does not have to be related to Covid-19 in any way. Further, this right to paid sick leave arises only "after 90 consecutive days of employment".
While the employee need not provide advance notice of this leave (indeed, providing advance notice would be inconsistent with the nature of this leave), the legislation does makes it clear that proof must be provided to the employer upon request. We will likely require caselaw to better understand what counts as "sufficient proof".
Also, the requirement that such proof must be provided as soon as practicable (section 49.1(2)) would be heavily fact-dependent.
Potential Paid Sick Leave Abuse
Now, if you are finding that an employee is curiously using his/her paid sick leave only on Fridays, what should you do?
As discussed in my other blog posts, as an employer, you always have the right to terminate an employee by providing sufficient notice or pay in lieu thereof.
The requisite length of notice or amount of severance will depend on the employment contract and/or the provincial Employment Standards Act; however, trying to terminate the employee on the suspicion of abusing paid sick leave is risky.
If you are not able to sufficiently show that that was indeed the case, you may face not just a claim for severance (for wrongful dismissal), but claims for defamation and/or bad faith damages as well.
The preceding content is for informational purposes only and does not constitute legal or professional advice. To obtain such advice, please contact our offices directly.
About the author
Simon practices in the areas of employment law and litigation, including small claims litigation. He has represented clients in commercial litigation matters such as commercial lease disputes, and breach of contract cases. In addition to court proceedings, Simon has experience assisting clients in arbitration proceedings and negotiating settlement agreements. Learn more about Simon.
Last updated on April 6th, 2022 at 12:02 pm