June 17, 2020

Are employers required to provide paid sick leave?

Anticipating a second wave of the coronavirus later this year, Prime Minister Trudeau made headlines recently saying he wants employees to have 10 paid sick days every year.

An employer’s obligation to provide sick time to employees is a matter that is covered by employment standards legislation. Some employers may go above and beyond the minimum entitlement in their contracts with employees.  

What is the minimum entitlement presently? 

For most employers in Ontario, the Employment Standards Act, 2000 (“ESA”) is applicable. The ESA is enacted and enforced at the provincial level and applies to all businesses that aren’t federally regulated (for example, banks and transportation companies).  

Up to 2018, employers with over 50 employees were required to provide employees with ten (10) days of unpaid emergency leave each calendar year under the ESA. The time could be taken for a number of emergency related reasons, including personal illness. 

Under Bill 148, effective January 1, 2018,  emergency leave applied to all Ontario employers regardless of size and the first two (2) days of the ten (10) day entitlement would be considered paid leave.  

The current Conservative government reversed that entitlement in 2019, replacing the ten (10) emergency leave days with three (3) unpaid sick days for each employee, three (3) unpaid days for illnesses or emergencies related to family members and two (2) bereavement days.  

The Upshot 

For Ontario regulated employers, there is no statutory requirement to provide paid sick time, but there is a requirement to provide three (3) unpaid days for personal sick time.

For federally regulated employers operating out of Ontario (again, banks and transportation companies, among others), the Canada Labour Code applies and offers more generous entitlements for sick leave. The Code was amended as of September 1, 2019 to permit employees up to five (5) days off each calendar year for personal reasons, including illness. Provided the employee has at least (3) consecutive months of service, three (3) of the five (5) days are paid.  

As noted, some employers (particularly unionized employers) may provide additional time off for employee illness and some may pay for that time off. Those employers are going above and beyond their minimum statutory obligation, but wouldn’t have the discretion to eliminate the privilege. As a matter of contract  and labour law (for unionized employers), the employees are entitled to the greater right or benefit to paid sick time afforded to them by their employers. 

Employers should always remember their obligations under human rights legislation.  An employee with a disability could be entitled to a leave of absence without pay for long periods of time.  In some cases, such absences are supported by disability benefits and could last 2-3 years.  In any event, the duty to accommodate under human rights law does not include the obligation to provide paid leave. 

What about Prime Minister Trudeau’s promise to increase paid sick time to 10 days for all employees?

That seems unlikely to happen in Ontario. 

First of all, he has no jurisdiction to dictate legislative changes at the provincial level.  The Prime Minister may have more luck at the federal level since that’s his jurisdiction.  

Secondly, given the reversal of the Bill 148 entitlements, it is doubtful that the current government would be willing to require employers to provide ten (10) paid days off for illness. If there is a change to provide more generous sick leave entitlements, it may be just a temporary measure to deal with COVID-19.  

Or, perhaps the Federal government will foot the bill for more generous, paid sick leave.  So far, 2020 has been the year of the unexpected, to the say the least.  Anything is possible.