May 4, 2021  By John Hyde

Paid Sick Leave - Now Is the Time to Revisit your Sick Leave Policy

The Ontario government infamously voted against legislated paid sick leave 21 times since the start of the COVID-19 pandemic, until finally, after a year of mounting pressure, it passed a temporary program providing workers with 3 paid sick days for reasons related to Covid-19. Other Canadian provinces may soon follow suit. Many observers predict that this legislation, now introduced as a temporary measure during the pandemic, will form the basis for permanent paid sick leave entitlements.

Some employers fear this development, but a refined and balanced paid sick leave policy can actually improve the management of employee absences. A comprehensive policy can also brace employers for impact, in the event that paid sick days are permanently legislated, and improve employee goodwill.

Here are 4 excellent reasons why all employers should adopt a well-written sick leave policy as soon as possible:

  1. The effect of noncompliance  

Employers in Ontario may freely draft sick leave policies without slavishly adhering to the requirements of the Employment Standards Act, (“ESA”). While there is no way to avoid paying the minimum sick leave to employees, Ontario legislation is written in a way that is very forgiving to employers with non-compliant sick leave policies. Specially, it says that if an employee takes paid sick leave under an employment contract for a reason permitted under the ESA, the time will count against the employee’s paid leave entitlement under the ESA. Thus, a seemingly non-compliant sick leave policy can be legally re-interpreted to put it in minimum compliance with the ESA. The new paid sick leave is completely unique in this respect.

The ESA is typically a hazardous minefield for employers; in the past, a poorly written sick leave policy could do more harm than good. That is no longer the case - in creating a minimum standard, the new legislation gives employers the benefit of the doubt when it comes to interpreting sick leave policies. This provides a huge advantage for employers – even those who do not wish to provide any sick leave benefit beyond the legislated minimum. Why? It allows employers to set understandings and expectations without the risk that contractual sick leave will “double up” with the new mandatory paid sick leave. On the downside, employers cannot use the benefit of government reimbursement for statutory paid sick days, to reduce the cost of existing contractual sick leave.

  1. Sick leave policies set expectations and understandings in plain language  

Employment standards legislation can be convoluted and difficult to read – even for lawyers. Employers who leave it up to their employees to determine their own sick leave eligibility are setting themselves up for frustration and business disruptions. A well-drafted sick leave policy is simple, straightforward, and can be understood by anyone. 

Employers without sick leave policies must prepare to be met with pleas of ignorance from no-show employees claiming sick leave after the fact. Employment law is one of the few areas where ignorance (on the part of the employee) is actually a fair defence; but companies can avoid this scenario by having well-written policies in place.

  1. Sick leave policies increase employee goodwill  

One easy way to make employees feel valued and acknowledged is by graciously giving them that to which they are already entitled -- and may not even be aware of. For instance, employees in some provinces may not be aware that they are entitled to sick leave with pay, in order to receive a COVID-19 vaccination, and to recover from side-effects (if any).

On the other hand, if management fails to acknowledge the new paid sick leave entitlement, it may create a negative impression among employees. This new sick leave entitlement is an opportunity for employers to demonstrate allegiance to their employees by welcoming and proactively adapting to it.

  1. Sick leave policies help employers manage employee absences  

Employees taking legislated paid sick days in relation to Covid-19 do not have to provide a certificate from a doctor or nurse as evidence. For other paid sick days, employers are generally permitted to request evidence of an entitlement to leave. While employers cannot practically stop an employee from taking a sick day, they can stop an employee from engaging in paid sick day abuse. Therefore, with additional paid sick days, payment can be withheld pending appropriate proof, such as a doctor’s note, a vaccination appointment, or even something simple like a receipt for cold medication. A well-drafted sick leave policy will make this clear to employees and to managers, and will allow companies to ensure that employees are only taking sick leave for permitted reasons.

Newsletter Subscription

Stay ahead of the curve by subscribing to our newsletter today. Written by our expert lawyers, this newsletter is completely free and covers a wide range of HR topics.