Winter is here. The leaves have fallen, snow has arrived, and the office soundtrack is in full symphony with the sounds of coughing, sneezing, and trips to the supply room to grab another box of Kleenex. That’s right – cold and flu season is back, which means it’s a perfect time to talk about sick leave policies.

No one likes to think about getting sick. Working with a cold, or even the flu, can be an unpleasant reality when deadlines are looming and the work must be done. Yet from a HR perspective, having solid sick leave policies can be crucial to maintaining business-as-usual during that pesky cold and flu season.  To maintain a healthy workplace, it is important to understand the law behind sick leave policies, when an employee should obtain a doctor’s note, and how employers can help improve the process.

The Law

Clients often ask us if employees are entitled to be paid for time off taken as sick days. The Employment Standards Act, 2000 does not contain any specific provisions for ‘sick leave’ per se. The Act does however grant unpaid Personal Emergency Leave for businesses that have 50 or more employees. This 10-day leave allowance per calendar year can be used for “personal illness, injury, or medical emergency,” or for the “death, illness, injury, medical emergency, or urgent matter” relating to a close family member, according to Ontario’s Ministry of Labour. The guidelines outline in detail what would be considered an urgent matter. For example, a last-minute babysitter cancellation or an immovable appointment with a child’s counselor would count under the criteria, but attending a child’s sporting event or music recital would not. The employee does not have to provide notice in writing, but should alert the employer to the leave as soon as possible.

The Personal Emergency Leave allowed by law is not intended to compete with any sick leave provisions contained in a private employment agreement. If an employee eligible for the statutory leave has a shorter leave written into their contract, then the 10-day leave would prevail. Employees of small businesses under 50 employees though do not have the legal eligibility, and depend on any contractual allowances for short-term sick leave.  This does not replace any allowances for long-term sick leave, it is simply for brief illnesses.

While Ontario does not legislate mandatory sick leave allowances for all employees, other provinces do.  Nova Scotia allows employees three days of sick leave per year, and employees in Yukon get up to 12 days per year (although a doctor’s note is required after 3 days). A recent report found that federal civil servants take on average 11.5 days of sick leave (varying from 7 to 14 based on department), however most of absent employees are not replaced for their time off, and so alleged costs to taxpayers are essentially negligible. Recently, the Federal Government put forth a proposal to reduce sick leave to 5 days for federal employees – a move that had Canada’s largest federal union seeing red. Public Service Alliance of Canada President Robyn Benson publicly referred to the move as a “go to work sick” plan that could lead to the spread of illness through the workplace.

While sick leave policies vary throughout the country, one theme is common, and has become a hot button issue in recent years: an employer may request a doctor’s note.

Time To See The Doctor

There is, of course, no cure for the common cold, nor are there medicinal solutions to most common flu viruses. For the majority of seasonal illnesses, home remedies and rest will often resolve the sickness in due course. So if medical attention will not help matters, at what point should a sick employee seek a doctor’s note?

Last January, Ontario’s top doctor made headlines when the Ontario Medical Association publicly advised sick employees to stay home rather than trudging into work. “I can’t stress it enough going to work while sick is bad for you and potentially worse for your colleagues. Staying home to rest will help you to manage your illness and prevent others from getting infected,” said Dr. Scott Wooder in a statement, adding “think about those around you, and please don’t take the flu to work.” Wooder said employers forcing employees out of bed to obtain doctors’ notes will only promote the spread of disease unnecessarily, potentially infecting more vulnerable patients in the doctor’s waiting room.

The topic is an especially contentious issue for HR professionals, who work to balance the health and well being of employees with the need to ensure policies are not abused and sick days are not taken falsely. The balance can be difficult, especially in the case of brief illnesses that may result in one or two days missed. As a result, the majority of sick leave policies request a medical note after a certain number of days absent to ensure the absence was legitimate, or for a more serious illness may require medical validation that an employee is fit to return to work. More often than not, medical notes are requested for medical absences that are suspiciously frequent, or may appear to be otherwise fraudulent – but employers generally understand that even the most reliable employees are prone to the occasional cold or flu.

While employers may require a doctor’s note, patient confidentiality and employees’ rights are still paramount. A medical note is not required to state the nature of an employee’s illness or any other confidential information, nor is an employer required to discriminate in any instances based on an employee’s disability or medical status. A medical note must only state an employee’s condition to the extent that it relates to limitations on their work duties, such as a recommended period of absence, and any other impact the employee’s illness may have on the workplace.

Crafting Good Policy

The key to maintaining a healthy workplace through cold and flu season is good policy. A sensible employee policy that allows employees brief absences for contagious illnesses can take stress off employees who fall ill unexpectedly, while helping to protect the rest of the team from getting sick.

Despite the existence of the flu vaccine, even the most diligent employees will fall ill occasionally, or have unexpected personal situations arise that may require a day or two off. Comprehensive workplace policies coupled with an understanding employer mentality will build an environment of trust around sick leave, and help reduce the rate of falsified absences. Employers in doubt can still request a medical note as validation, but should avoid doing so in every circumstance.

To create sick leave policies for your organization that cover the necessary ground or to ensure your existing policies are up to par, we can help. Contact us today to speak with one of our Employment Lawyers or HR experts for more information.

Blog post by Shaun Bernstein