'In terms of talent attraction and retention, many employers already have robust disability benefits, both short and long-term'
Sick leave – it’s a contentious issue for Canadian employers and employees alike. Earlier this month, the Ontario government officially confirmed the end of COVID-based sick leave – a program which gave employees up to $200 of pay for up to three days off work. And according to the data, an estimated 500,000 workers used the program since it was created in 2022.
Now with COVID on the backfoot, the government has called for the scheme to end – citing high soaring vaccination rates and declining cases.
"As a time-limited pandemic measure, the Ontario government introduced paid COVID-19 leave, a program designed to support people who needed to take time off work to isolate or get vaccinated," sources told CBC and Global News. “Ontario has now achieved one of the highest vaccination rates in the world, and consistent with the sunset date for this program, it will expire effective March 31, 2023.”
‘Never meant to be permanent’
But what does this mean for employees? How will this move impact organizations going forward? Speaking with Lorenzo Lisi, partner at employment law firm Aird & Berlis, he tells HRD that it’s no longer about COVID – the issue at hand is much bigger than that.
“While I understand people are angry about the news, this program was never meant to be permanent,” he says. “The goal of the introduction of paid sick leave days was to ensure that employees would not have to attend work when they suspected they had COVID, to self-isolate or to look after family members who may need assistance due to COVID. Ontario now has one of the highest vaccination rates and COVID is not the threat to public safety it once was and the measure, which was COVID-based, is no longer required.”
This does leave the bigger political issue as to whether governments should be responsible for funding employee sick leave days in the future.
“The issue isn’t related to COVID anymore,” he says. “It’s about paid time off in general. Sick leave and absenteeism is one of the major costs for employers in Canada. But it’s not just about the cost; it impacts staffing and the ability to meet the demands of the business.
“Remember that many employers have short-term disability policies which compensate employees for their absence after a certain period of time, often three days, either at full or partial wages. Further, unionized employees often have coverage under the provisions of a collective agreement which provide them paid sick days and time off. In the public sector, these are often very generous sick leave programs.”
Impact on employers
So can we expect to see the government dig deep and fund more sick leave days? Not likely, says Lisi.
“I don't think this government has any intention of doing that,” he tells HRD. “The Ford government commented that they plan to provide portable health and dental coverage to workers without paid sick leave, which is likely targeted to assist employees who don’t have access to the same kind of sick leave. The issue of providing sick days has a greater impact on smaller businesses, where employers don’t necessarily have the resources to pay employees when they’re not well.”
Lisi also indicated that he does not believe that the government’s decision will impact an employers’ ability to attract and retain talent.
“This is no different than it was pre-COVID,” says Lisi. “In terms of talent attraction and retention, many employers already have robust disability benefits, both short and long-term. And this does not impact employees who are injured at work and are covered by a workers’ compensation benefit system. Again, the debate over government paid sick leave benefits seems to be focused on smaller businesses and their workers.”
And it’s this disproportionate impact that’s riling some groups. Speaking to CityNews, Mike Schreiner, Ontario’s Green Party leader labelled it a “huge mistake”.
“We know it’s better for workers to stay home when they’re sick and it is very difficult for many workers to do that when they’re in the impossible situation of saying, ‘Hey, do I pay the rent, pay the bills, meet my family obligations or do I go to work sick?’ We need permanent paid sick days in Ontario.”
What’s more, the Liberals’ John Fraser seemed to agree, adding that people “shouldn’t go to work when they’re sick” – saying it “decreases our productivity.”
Sick notes in spotlight
But whether or not the cancellation of COVID sick leave days will impact some workers more than others is yet to be seen. What’s clear is that that move has sparked further discussions around the whole process of taking and approving sick leave – specifically the dreaded sick note.
Earlier this week, Nova Scotia limited employers’ rights to ask for multiple sick notes in a bid to improve access to health care and ease some of the burden on workers. But it’s good news for HR leaders too. Asking for and processing sick notes in a large organization eats away at valuable time for employees and HR. So when should you demand a doctor’s note?
“There's no one size fits all answer for that,” says Lisi. “Under a collective agreement, there might be restrictions on what an employer can ask for in terms of confirmation. Generally, if there's a short-term disability program, the employer will set out the information employees have to provide to prove that they're off work. And that can often be adjudicated by a third party.
“However, in workplaces without agreements, it’s up to the employer to decide what sorts of information they require. One of the big issues for employers is a generic doctors’ note which simply says ‘off work’ until a specific date - with no information on what the employee can do or when they can return. This causes significant disruption to the business and can often be abused since it’s not hard to get a doctor’s note which excuses you from work.”
Determining what information an employer can ask for, particularly when it comes to inquiring about accommodation, becomes even more nuanced. According to Lisi, this is a very complicated area for employers, in that there’s a lot of restrictions on what employers can and can’t demand.
However, Lisi adds that it’s not only necessary for an employer to make the inquiry with respect to accommodation - it’s part of the process required at law.
“You can’t ask for a diagnosis,” he says. “But you can ask for the medical restrictions to perform the duties of their job, the expected return to work date, and what accommodations might be necessary.”
Employers should have a process to confirm these restrictions, and ensure that the employees’ doctor knows and understands the true duties of the employees’ job, so as better to comment on how they can be accommodated.
“Of course,” says Lisi, “if the illness turns into a short-term disability, then most employers do have a process in place to both compensate the employee and engage in an ongoing review with respect to possible accommodation.
“Managing absenteeism is one of the biggest challenges facing employers. Each case is determined on its own facts. Having a clear protocol and process is very important.”
