Duhaime's Law Dictionary


Sick Leave Definition:

Time off from work, paid or unpaid, on account of an employee's temporary inability to perform duties because of sickness or disability.

Related Terms: Bereavement Leave

In St. James Assiniboia Teachers' Association, Justice Sinclair wrote:

"A sick leave provision, whether in a collective agreement or in legislation, is intended to protect an employee’s income and status during the period of illness or injury."

In many employment situations where a union exists, with a collective bargaining agreement, sick leave is paid and employee's are given a set number of paid sick leave days they can take each year. Most are given the option to bank these days and if not used, redeem them for vacation leave on either a one-for-one ratio, or such other ratio as provided for in the collective bargaining agreement.

In such a context, sick leave is pay for time off from work. It is paid for by the employer to the employee at the employee's regular wage at the time the leave was taken.

Sick leaveSome jurisdictions provide for sick leave within labor or employment standards legislation, to thus benefit non-unionized employees, such as this example from §44.021 of the Employment Standards Act of the Canadian Province of New Brunswick:

"An employer shall, upon the request of an employee, grant the employee leaves of absence without pay of up to five days during a twelve calendar month period for sick leave if the employee has been in the employ of the employer for more than ninety days.

"If an employee requests a leave of absence under subsection (1) that is four or more consecutive calendar days in length, the employer may require the employee to provide the employer with a certificate of a medical practitioner ... certifying that the employee is incapable of working due to illness or injury.

"An employee requesting a leave of absence under this section shall advise the employer, subject to (the above), of the anticipated duration of the leave."

For employees who work in jurisdictions without any statutory recognition of sick leave (such as British Columbia, circa 2008), and without any collective bargaining agreements that recognize sick leave, there is little protection against an employer seeking to terminate the employment because of sick leave taken. On a contractual basis, it is an essential term that the employee will attend the work premises.

However, most employers do not want to terminate an otherwise good employee just because if the rare sick leave taken. But where this does occur, the court would look towards the acceptance of any past sick leaves within the work group, to determine if any pattern was established which might extend some protection to the employee who returns from sick leave to no employment.

Even in the absence of any clear legal grounds to do so, most judges tend to rule that where the employee's short term temporary sick leave is unintentional ("innocent absenteeism"), and the employee is dismissed because of it, the employer owes the dismissed employee severance pay.

On the other side of the spectrum is  one particularly ambitious decision, that of Justice Wood of the British Columbia Supreme Court who adopted these words in Yeager:

"...if the misconduct of the servant is such as to amount to a fundamental breach of the contract of service, the master is entitled to, in effect, rescind that contract without notice. An essential characteristic of any conduct which justifies summary dismissal is its willful nature, for it is this feature of the conduct which gives rise to the inference that the servant intends no longer to be bound by the contract of service, with the result that the relationship is struck at fundamentally.

"It is for this reason that the law has long recognized that absence from work due to illness is not cause for summary dismissal.

"Historically, illness has been attributed to the act of God.

"Even where the illness is itself brought on by imprudence or willful misconduct, it will still be treated as an act of God and the resulting absence from work will be no cause for summary dismissal"

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