Ravenlaw gratefully acknowledges the contribution of this post by summer student Emily McBain-Ashfield.
Asked to work but feeling ill? Your job is protected
As some regions in Ontario enter Phase 2 of re-opening, more people will be asked to return to work. If you are one of those people being asked to return to work, you may be wondering: what will happen to my job if I feel sick, but do not have any sick days?
Even without sick days, your employer cannot fire you for taking a leave due to COVID-19 related symptoms. You do not have to choose between following public health guidelines when you feel ill and keeping your job.
COVID-19 Related Emergency Leave Without Pay
Whether you work in a provincially or federally regulated industry, workers in Ontario have access to job-protected COVID-19 related leave.
Under the Employment Standards Act, 2000 (ESA), provincially regulated workers can take leave without pay if they are isolating because they have, or are suspected to have, COVID-19. Furthermore, employees can use this leave to care for others with suspected or confirmed COVID-19. Once you return to work, your employer must reinstate you to the same position with the same pay as before you took leave.
You do not need to provide a medical certificate to take COVID-19 related leave under the ESA. However, your employer can require evidence that you qualify for leave, as long as the request is reasonable in the circumstances and at the time of the leave. For example, as testing in Ontario becomes more accessible, asking for evidence of COVID-19 testing may become more reasonable.
Federally regulated employees also have job protected leave for up to 16 weeks under the Canada Labour Code (CLC) if they cannot work because of COVID-19. You must notify your employer as soon as possible about the leave, including the expected length of leave. You do not need a medical certificate to take COVID-19 related leave under the CLC.
Your job is further protected under the Human Rights Code
Disability is a protected ground under the Human Rights Code and your employer cannot discriminate against you because of a disability. The Ontario Human Rights Commission considers COVID-19 status as a protected ground under disability. This means is you cannot be fired because of your COVID-19 status, up to the point of undue hardship on your employer. In addition, the need to care for ill family members engages the protected ground of family status. So, you cannot be fired for taking leave to care for a family member. Unless your employer can demonstrate that accommodating you causes undue hardship, your employer must accommodate you by either providing leave or an alternative working arrangement.
How will I afford unpaid leave?
Currently, your employer does not have to pay for sick or COVID-19 related leave. The Federal Government recently announced they are discussing with provinces the possibility of giving workers 10 paid sick days. However, access to 10 paid sick days is not going to happen overnight, and each province may respond differently.
We are here to help you navigate workplace issues. Consult one of our experienced lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are facing difficulty in your workplace due to taking COVID-19 leave.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]