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What are the rights of a worker on indefinite sick leave?

Special to The Globe and Mail

The question

I have only been with this company for three weeks and am off sick indefinitely. My doctor gave me a note stating that I will be off work indefinitely. I provided my employer with this note and they agreed to pay me for the four days I was off last week; however, since I’ve only been with this new company less than one month, if they do not pay me, should I apply for Sick Benefits through Employment Insurance? Can this company legally fire me?

The answer

As I usually find with workplace law, a number of different legal issues get tangled up in one complicated web. In your case, various rights and obligations (both employer and employee) are in play.

First, you cannot be fired because you are sick and it does not matter that you have only worked for a few weeks. Once you commence work (and sometimes even before) human rights legislation kicks in and forbids your employer from making adverse decisions about your employment based on a prohibited set of grounds, including illness or disability. When I represent clients at federal and provincial human rights hearings, there is always a heightened presumption of discrimination when an employee with only a few weeks’ tenure is suddenly fired, since it usually takes employers slightly longer to assess whether there is a poor fit.

Second, employees who do not work are not entitled to pay. This is because you have no legal right to sick leave, unless it is guaranteed in your employment contract. As a result, any money they have paid you was gratuitous and do not expect it to continue. If you are participating in the company benefits plan (which is also not a legal requirement) then you may be eligible to make a claim for short-term and, eventually, long-term disability payments. However, many insurance companies require you to work for a certain period of time before their benefits kick in. You will have to check the terms of your own plan.

Third, it is true that Employment Insurance benefits are available to employees who are unable to work because of sickness or injury. However, there are a few preconditions. In order to receive benefits, you must have worked at least 600 hours for any employer in the last year or since your last claim for benefits. The federal government publishes easy to read information about Employment Insurance benefits online.

Daniel Lublin is a workplace law expert and a partner at Whitten & Lublin.

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