Focus On

Who is entitled to paid sick days? | Stuart Rudner

Monday, May 17, 2021 @ 8:50 AM | By Stuart Rudner


Stuart Rudner %>
Stuart Rudner
One of the biggest topics of debate these days is whether employees should be entitled to paid time off when they are sick. There has been extensive discussion about whether paid sick days should be legislatively required and if so:

  • Who should be entitled to them?
  • How many days should be available?
  • What the prerequisites will be to qualify?
  • Whether this will be a temporary initiative during the COVID-19 pandemic or a permanent right?
  • Who will pay for them?

Business associations, labour representatives and every level of governments have all weighed in. Each group has its own constituency and mandate. As a mediator, I am trained to search for common interests between parties on opposite sides of a dispute. In the context of this debate, it is not hard to identify the common goal: no one wants to see people attend at the workplace when they are sick, particularly if they show signs of COVID-19. The challenge, of course, is finding a solution that works for everyone. That is rarely possible.

The impact of people coming to the workplace while sick is felt by everyone. For the individual, if they are truly sick, they need rest and perhaps medical care; it will rarely help them if they spend the day working, and in most cases it will prolong the illness. While they may physically be at work, they are unlikely to be as productive as usual.

Furthermore, if they have an illness that is contagious, whether it be a common cold or the coronavirus, there is a risk that others will be infected and face the same dilemma: take time off work or attend at work when they should be home resting. An outbreak can shut the entire workplace down.

Only Quebec and P.E.I. require paid sick days in their employment standards legislation. As a result, many workers, particularly in lower-paying positions, simply cannot afford to take a day off work. Faced with the choice of staying home and losing a day’s pay or attending at work even though they are sick, they are forced to choose the latter, even if it means risking transmitting a virus like COVID-19.

Of course, employers are free to offer their employees more than the minimum requirements established by legislation, and many organizations choose to offer paid sick days to their employees. One example is Riverside Natural Foods, who were featured in a CBC News feature. Their experience has been that making it easy for workers to stay home when sick has not been an added cost, but a move that has improved the bottom line. This progressive company offered up to four paid sick days prior to the pandemic and increased it to 14 when the pandemic started.

Conversely, many business owners and associations have asserted that you cannot adopt a plan that will apply equally to all employers. While some companies may easily be able to absorb the additional costs, they assert that those costs could decimate already struggling small businesses. They point out that adding 10 paid sick days can add up to four per cent to payroll costs.

According to that same CBC article, close to three-quarters of workers making less than $25,000 are not entitled to paid sick days. In response to the public calls for assistance, various levels of government have enacted temporary measures, including the federal Canada Recovery Sickness Benefit.

There is also concern about excessive use and potential abuse of sick days, particularly as the pandemic drags on. Some employers say they have had employees claim the need to self-isolate two or three times, for two weeks each time. Most of the legislation in place relating to COVID-related absences precludes requiring that employees produce medical documentation, so employers cannot assess the veracity of the absences. As they have said, it is hard enough to manage a workforce with such absences, and it would be even more of a burden if those absences were paid. It would also be more tempting for people to claim sick days when they are not truly necessary.

As is often the case when it comes to employment laws, there is no easy solution. It seems clear that there needs to be income protection so that workers do not have to go to work when they are sick, especially when they risk causing a workplace outbreak because they can’t afford to stay home. However, measures should be in place to ensure that absences are legitimate, and there should be an acknowledgement that not every organization can afford to pay for employees that are at home. Eligibility for government supports such as the Canada Emergency Wage Subsidy have been offered only to organizations that meet specific criteria; perhaps the same can be done for paid sick days.

Stuart Rudner is a leading Canadian employment lawyer and mediator at Rudner Law. He is the author of You’re Fired! Just Cause for Dismissal in Canada. He can be reached at 416-864-8500 or stuart@rudnerlaw.ca.

Interested in writing for us? To learn more about how you can add your voice to
The Lawyer’s Daily, contact Analysis Editor Richard Skinulis at Richard.Skinulis@lexisnexis.ca or call 437- 828-6772.