Paid Sick Leave: A Strategy for Attracting Talent and Ensuring Employee Well-Being

"Each province has a legislative minimum, and most of those jurisdictions have unpaid sick leave,” he said. “In Ontario, for example, employers are required to offer three unpaid sick days. But, according to Statistics Canada, the average worker takes between nine and ten days off due to illness annually. So, is three days of unpaid time off competitive in the marketplace?"

The reality is that employees expect more than the bare minimum, particularly in sectors where paid sick leave is standard. Public sector workers, for instance, enjoy an average of 15 paid days off due to illness annually, he said. In the private sector, that number hovers around nine to 10 days, often paid.

"If you're going to be a best-in-class employer and you want to attract and retain the right people, you need to offer more than just the minimum," Weippert said. "It's common for employers to offer between five and ten paid sick days, which is considered a competitive standard."

Unlimited or capped sick days?

Paid versus unpaid leave isn’t the only decision for employers to make around sick days — there’s also the question of offering unlimited days or putting a hard cap in place.

Going unlimited is probably on feasible for larger organizations, he said.

"Small and medium businesses, in particular, might struggle to cover the cost of a $100,000 employee who is absent for months with no return on investment," he says. “I would be very cautious about if I were advising an employer to go down the unlimited pathway because it could come some real challenges financially and strains on the business.”

Serious injuries, like a broken back, or diseases like cancer can put somebody off for a long period of time and that can strain an organization’s finances, he said. But that’s where benefit programs like short- and long-term disability come into play.

No limit on unpaid sick leave

One thing employers can’t do is limit the number of sick days people can take, he said.

“They can limit the number of funded sick days that they’re going to provide, but it’s a human right for somebody to be off due to an illness,” said Weippert.

An employer can’t stop someone who has exhausted their sick leave from taking time off. “Maybe that person broke their back, and now all of a sudden they’re going to be off for nine months. The employer can’t stop that or terminate the employee… because illness is protected under human rights,” he said.

Short-term disability typically kicks in after 30 days of absence, with long-term disability starting after three to six months. While the specifics vary by organization, many smaller businesses choose to self-fund short-term disability, carrying the financial burden for the initial months of an employee’s illness.

A best practice is to have a third party adjudicate decision on short- and long-term disability.

“As an employer, you’re not a medical professional,” said Weippert. “You can’t be judge and jury when it comes to people’s health, and you need to get other health practitioners involved.”

Employers have the right to ask for a prognosis for the worker, but not a diagnosis, he said. That includes the worker’s expected return date and accommodation requirements.

Termination may become an option once two years or so have passed, he said, under the legal concept of “frustration of contract.” The two-year mark isn’t a hard-and-fast rule, but it’s a guideline.

“It’s really based on the circumstances of the case and the program, the insurer, the province that you’re in, case law, and the situation in general,” said Weippert.

Asking for a doctor’s note

Asking a worker to provide a doctor’s note for an absence is a grey area, he said, adding that in HR there are things organizations “can” do under legislation and things they “should” do to be a great employer.

When the Liberal government was in power in Ontario, employers were banned from asking for a note in many circumstances. But now that the Progressive Conservatives are in power, doctor’s notes are back on the table, he said.

“The laws keep changing. It switches from time to time depending upon which party is in place,” said Weippert. Manitoba, for example, has a rule that you can’t ask for a note until an employee has been absent more than seven days over the preceding 12 months unless there is a noticeable pattern.

“In that case, you can’t ask if somebody has been absent for three days,” he said.

But he’s not a big fan of asking staff to provide notes for one-off absences. He advises employers ask for a note once a worker is off for more than five days. “That’s a fair number of days.”

Navigating family and sick leave laws

Another emerging trend is provinces combining sick leave with family leave, as seen in Alberta and Manitoba, he said.

"In these provinces, employees can take time off for their own illness or to care for a family member. This creates a grey area for employers, especially if they offer uncapped sick leave," Weippert said.

"Does uncapped sick leave now apply to family illness as well? That opens up a lot of risk for employers, and it’s something they need to navigate carefully."

Consistency is key

One final word of advice from Weippert: consistency in applying sick leave policies is crucial. "It’s very dangerous to apply policies inconsistently across your organization. If managers are given discretion, they might treat employees differently, which can lead to claims of discrimination or favouritism."

Weippert's experience underscores the importance of clear, fair policies that are applied uniformly. "If an employee feels they're being treated differently, especially if they belong to a protected group under human rights legislation, it can open the door to serious legal challenges."

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