Can You Be Laid Off While on Sick Leave?
There are countless reasons why an employee may need to take sick leave. Whether you are taking a time to recover from an illness, injury, or other medical events it is important to understand your rights as an employee. All workplaces in Ontario are required to provide three days of unpaid, job-protected sick leave each year. However, many workplaces have policies allowing for paid sick days or additional sick leave benefits.
At Soni Law Firm, our clients sometimes ask us, can you be laid off while on sick leave. Though generally speaking, yes, you can be laid off while on sick leave, the answer is often more complicated than a simple yes or no. There are many factors at play when determining what happens when you are laid off during sick leave. The type of sick leave you are on and whether or not you are receiving short- or long-term disability benefits all contribute to how layoffs are handled. Below, we break down the types of sick leave and disability benefits you may be entitled to and offer
guidance on how to proceed if you are laid off while on any type of sick leave.
For a better understanding of what layoffs mean see our previous article, What Happens When You Get Laid Off. You cannot be laid off or terminated for using sick leave alone. If you feel you have been laid off because you have used sick leave entitlements, we strongly suggest speaking with a dismissal lawyer.
Types of Sick Leave
When it comes to determining if you can be laid off while on sick leave it is important to understand the different types of sick leave that may be available to you as an employee. Keep in mind that some employers do not offer paid sick leave while others offer paid sick leave, short-term disability and long-term disability benefits. Refer to your employment contract or collective bargaining agreement to determine which types of sick leave are available to you.
Unpaid Sick Leave – in Ontario, every employer is required to provide three days of unpaid, job-protected sick leave to their employees.
Paid Sick Leave – paid sick leave is often considered to be an additional benefit of employment and is something that would be outlined in a collective bargaining agreement or employment contract. Some employers may allow employees to earn paid sick leave throughout the year. Paid sick leave can also be covered for up to 15-weeks under employment insurance (EI) in Canada. Note that you may also be entitled to EI even if you got fired.
Short Term Disability – short term disability is an insurance benefit that is often covered through workplace benefits programs. It is used for illness or injury and usually provides benefits for up to 6 months. Short-term disability often covers illness or injury that happens outside of the workplace.
Long Term Disability – long term disability is another insurance benefit that may be offered by an employer. LTD kicks in after all other forms of sick leave are exhausted and the employee is still unable to return to work. LTD can offer benefits to an employee even if it has been determined that an employee will never be able to return to work.
How Does COVID Affect Sick Leave?
It is important to note that employees who are taking sick leave due to COVID-related treatment, isolation or illness are entitled to paid sick leave. Up to three days of paid leave is available as part of the emergency measures taken to protect Ontario employees during the COVID-19 pandemic. An employee cannot be fired or laid off for utilizing this paid leave, however proof of eligibility may be required to obtain this benefit.
Can I Be Laid Off While on Sick Leave?
Being laid off is a type of termination of employment that comes from no fault of the employee. Though your employer is able to lay you off at any time, sick leave and long-term disability can complicate how a layoff is handled. Your employer cannot fire you because you are on sick leave or for using your sick leave benefits. For your employer to lay you off or terminate your employment they must give you the appropriate notice or severance pay. Employers must also abide by Employment Standards and Human Rights Legislation when laying off an employee.
If you are being laid off while on sick leave it is important to contact a termination lawyer promptly. Each employee-employer relationship is unique, and you deserve to be protected against wrongful dismissal and constructive dismissal.
For more information on how medical leave and long-term disability can impact your employment see our previous articles, Can an Employee Receiving Long Term Disability Benefits Be Fired and Your Rights on Medical Leave.