Sick leave in Ontario is one of the most misunderstood workplace rights. Many employees know they are entitled to a limited number of protected sick days under Ontario’s employment standards legislation, but fewer understand what happens when an illness extends beyond those initial days.
Under the Employment Standards Act, 2000 (ESA), Ontario employees are statutorily entitled to up to three unpaid, job-protected sick days each calendar year after completing two weeks of service. However, an employer’s obligations do not necessarily end there. When a physical or mental health condition requires additional time away from work, employers may have a legal duty to accommodate the employee under human rights legislation.
Understanding the difference between statutory sick leave and an employer’s duty to accommodate is essential for both employees and employers navigating ongoing health-related absences.
TL;DR: What are your sick leave rights in Ontario?
Ontario employees are entitled to:
- Up to three unpaid, job-protected sick days per calendar year
- Protection from discipline or retaliation for using statutory sick leave
- Sick leave for illness, injury, or medical emergencies
- Human rights accommodations for ongoing medical conditions
When a health condition extends beyond Ontario’s three statutory sick days, employers may have a duty to provide reasonable accommodations, including:
- Extended unpaid medical leave
- Flexible work schedules
- Remote work arrangements
- Modified duties
However, employees also have responsibilities in the accommodation process, including providing medical information and participating in discussions about reasonable accommodations.
How many sick days do employees get in Ontario?
Employees in Ontario are entitled to three unpaid sick days per calendar year under the ESA.
What is statutory sick leave in Ontario?
Statutory sick leave in Ontario under the ESA, allows employees to take a certain number of sick days. The employee:
- Must have completed two weeks of service with the employer to be eligibleÂ
- Is entitled to three unpaid sick days per calendar year
- Cannot be disciplined or face any retaliation as a result of taking the leave.
Employees can take these days for personal illness, injury, or medical emergencies, regardless of how the condition occurred.
Can an employer discipline you for taking sick leave?
Generally, no. Employees cannot legally be disciplined, terminated, or retaliated against for taking protected sick leave under the Employment Standards Act.
Can employers ask for proof of illness?
Employers may request reasonable proof that the leave was needed, but as of October 28, 2024, they can no longer require a doctor’s note.
What happens when you need more than three sick days?
When an illness, whether physical or mental, extends beyond the three-day sick leave, the conversation shifts from a statutorily protected leave to the employer’s legal responsibility under human rights law.
The duty to accommodate medical conditions in Ontario
In Ontario, an employer has a duty to accommodate ongoing health issues and resulting absences to the point of undue hardship.
What accommodations may be available
If an employee has ongoing health or medical issues that requires accommodation, this could result in:
- Extended unpaid leave medical leave (if it is medically supported and reasonable)
- Accommodation in the workplace, including:
- flexible scheduling
- remote work arrangements
- modified duties
The employer’s duty to accommodate
The duty to accommodate has a procedural and substantive component.
Procedural duty to accommodate:
The procedural duty to accommodate involves obtaining all relevant information about the employee’s accommodation needs and when they may need time off. In most cases, the procedural duty to accommodate is triggered by an employee’s express request for accommodation.
Substantive duty to accommodate:
The substantive duty is the actual accommodation provided depending on the reasonableness of the accommodation offered or the employer’s reasons for not providing accommodation.
Once an employer has satisfied the procedural duty to accommodate, an employer must use the information obtained to put in place reasonable accommodations, if any, that would not cause the employer any undue hardship.
Employee responsibilities during the accommodation process
Accommodation is a two-way street. Employees have an obligation to cooperate in the accommodation process. This includes:
- Alerting the employer about the existence of a disability or medical issue and the requirement for accommodation, including time off
- Providing sufficient medical evidence
- Accepting reasonable proposals for accommodation made by the employer
As a result, if an employee is aware of an ongoing medical condition that may require inconsistent absences, it is part of their duty to raise this with the employer in advance and help come up with a plan. It is not sufficient to simply call in sick on an ad hoc and consistent basis and expect to be accommodated.
Can you be fired for calling in sick frequently?
Not necessarily.
If frequent absences are connected to a disability or medical condition that requires accommodation, employers generally have a legal obligation to accommodate the employee to the point of undue hardship. However, employees are expected to participate in the accommodation process and provide sufficient medical information when requested.
What happens if an employee refuses to participate in accommodation?
An employee should do everything in their power to participate in the accommodation process and provide as much information as possible to assist.
Ultimately, if employee fails to do so, they may not be accommodated and they may be vulnerable to discipline.
Frequently Asked Questions
How many sick days do employees get in Ontario?
Ontario employees are entitled to up to three unpaid, job-protected sick days per calendar year after completing two consecutive weeks of employment.
Can my employer fire me for taking sick leave?
Generally, no. Employers cannot discipline or terminate employees for taking protected sick leave under the Employment Standards Act.
Can an employer ask for a doctor’s note for sick leave?
As of October 28, 2024, employers in Ontario cannot require a doctor’s note for ESA-protected sick leave. However, they may request other reasonable evidence that the leave was needed.
What happens if I need more than three sick days?
If a medical condition requires additional time off, an employer may have a duty to accommodate the employee under human rights legislation, which can include extended leave or workplace modifications.
Can I be fired for calling in sick too often?
Not necessarily. If absences are connected to a disability or medical condition, employers may have a duty to accommodate. However, employees must participate in the accommodation process and provide necessary medical information.
What medical information can an employer request?
Employers are generally entitled to information regarding restrictions, limitations, and accommodation needs, but not necessarily a specific diagnosis.
Do mental health conditions qualify for workplace accommodations?
Yes. Mental health conditions may constitute disabilities under human rights legislation and may require workplace accommodations where appropriate.
What is undue hardship?
Undue hardship is the legal limit on an employer’s duty to accommodate. Factors such as cost, health, and safety considerations may be considered when determining whether
Key Takeaway
Many employees assume their workplace rights end after Ontario’s three statutory sick days. Employees with ongoing physical or mental health conditions may have additional protections through the duty to accommodate under human rights legislation. Both employers and employees have responsibilities in the accommodation process, and early communication is often critical to achieving a successful outcome.
Need advice about sick leave and or workplace accommodation in Ontairo
Every workplace situation is different. If you have questions about sick leave in Ontario, workplace accommodations, medical absences, or your employer’s duty to accommodate, obtaining legal advice early can help you protect your rights and avoid costly mistakes.
Whitten & Lublin’s employment lawyers advise employees across Ontario on sick leave, disability accommodations, workplace discrimination, and employment law disputes.
Contact us online or call (416) 640 2667 to discuss your situation.
