Employee calling in sick too much

Question: If an employee is calling in sick too much and surpasses the sick day allotment provided to employees, can the employer discipline the employee, or at least warn the employee of potential discipline? Can medical documentation be required if all the absences are separate sick days?

Answer: The answer to the first question is presumptively no — an employer generally cannot discipline an employee or warn an employee of potential discipline because the employee is calling in sick too much (absent culpable absenteeism) and surpasses the sick day allotment.

Nonetheless, the employer should have a discussion with the employee to explain that she has exceeded the sick day allotment and therefore the employee will not be compensated for further sick days (unless, for example, the employee can draw on banked vacation days). This would not be disciplinary. The employer can also communicate to the employee that attendance is important — or, depending on the circumstances, critical — and the employee should be mindful of her health. Where applicable, it may be a good opportunity to remind the employee of any employee assistance programs.

The employer should continue to closely monitor this situation should it persist. Termination for innocent absenteeism (medically justified absenteeism) is prima facie discrimination — however, it can be justifiable where there is no reasonable prospect of improved attendance in the future and accommodation would impose undue hardship on the employer: see the 2008 Supreme Court of Canada decision in Syndicat des employé-e-s de techniques professionnelles & de bureau d’Hydro-Québec, section 2000 (SCFP-FTQ) c. Corbeil. In such a case, the employment contract would be frustrated and the employer would have discharged its duty to accommodate to the point of undue hardship.

Of course, not all absenteeism is innocent. If there is evidence of sick leave abuse, such as a pattern of sick leave being taken around weekends or after holidays, it may be an indicator that an employee is abusing sick time and not genuinely ill. Where an employer is satisfied that it is a case of culpable absenteeism, it can impose progressive discipline. 

Finally, in terms of medical documentation, the amount or frequency with which an employer can require depends on the circumstances and jurisdiction. For example, recent legislative amendments in Ontario have limited an employer’s ability to require a medical certificate for sick days protected under the province’s Employment Standards Act, 2000. A provincially-regulated Ontario employer may only require an employee who takes leave under this section to provide evidence “reasonable in the circumstances” that she is entitled to leave, but “shall not require an employee to provide a certificate from a qualified health practitioner.” Note that this provision is limited to ten total days in a calendar year — up to two paid and eight unpaid.

Practically speaking, even where it is permissible, most employers do not find it useful to require that all sick days be individually supported, as it is a burden.

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