Lawyer blames unions and employers for making sick time ‘a choice, not a necessity’
As interest in eliminating banked sick days gains momentum across the country, some labour law and workplace experts warn that getting rid of this benefit is not as simple as it may seem — for both employees and employers.
The Ontario government recently passed Bill 115, legislation that eliminated the ability for teachers to bank sick days and reduced the number of paid annual sick days to 10 from 20.
Premier Dalton McGuinty has also mused about taking away sick day banks for police and firefighters. Meanwhile, the mayor of Windsor, Ont., says this issue will be at the forefront of upcoming negotiations with its unionized inside and outside workers who are entitled to bank up to 18 sick days a year.
While banked sick days may be seen by many as a “perk” in current economic times, they should be viewed within the context of the overall collective agreement, according to Michael Lynk, a labour law professor at Western University in London, Ont.
Singling out this one issue may be “good politics” for employers, but it doesn’t take into account the give and take involved in collective bargaining, he says.
“When you have a provision like that put in, it’s often because something else has been given up,” he says. “The union has either removed other things off its bargaining list or accepted other concessions from the employer.”
Historically, allowing employees to bank sick days with a payout upon retirement was seen as a way to encourage people not to use sick leave, says Blaine Donais, a mediator and president of the Workplace Fairness Institute in Toronto.
The other benefit was that workers who were very sick would have a fully funded sick leave. Under the terms of Bill 115, sick leave beyond the allowable 10 days would be replaced by short-term disability, which pays 66 per cent of a teacher’s regular wages, he says.
While this amount of sick leave is not normal for most employers, teachers are in a more “vulnerable” situation, as are firefighters and police officers given their occupational hazards, Donais says.
Although banked sick days are a “perverse incentive,” taking them away has other complications, he says.
“Teachers’ benefits are based on their total amount of pay, so this will be reduced as a result,” he says.
But the Ontario government and other public sector employers say bankable sick days have created huge unfunded liabilities that will put them in a disastrous financial position in the future.
Spread over several decades, the cash payouts for bankable sick days are “relatively insignificant” on a yearly basis, Donais argues.
There can be more financial hardship caused by withdrawing the benefit in collective bargaining and having to pay out accumulated days instead, he adds.
Sick day banks are often unfunded because employers tend not to make them a line item in the budget the same way they do with other benefits, Donais says. And as much as employers see banked sick days as costly in the long term, they do benefit in the short term with lower rates of absenteeism, he says.
“But as our understanding of sick leave increases, this is an issue,” he says.
Bill Wilkerson, CEO of the Global Business and Economic Roundtable on Addiction and Mental Health in Port Hope, Ont., couldn’t agree more.
Sick day banking has taken the focus off of the goal of sick leave: allowing people to get better, he says. It’s made sick leave a “benefit” — with negative consequences to employees.
“What that distorted over time is that people who really should have been off because they were ill or injured weren’t,” says Wilkerson. “It’s a distortion that began to cloud the field of occupational health and safety.”
Worse still is genuinely ill people feel even more pressure — thanks to generous sick days — not to exceed their banked days, Wilkerson says.
“That’s crazy. The result is an upside-down arrangement,” he says. “The idea of banked sick days distorts the idea of taking time off to get well and come back.”
He blames unions and employers for “rigid, contractual arrangements” that made sick time “a choice, not a necessity.”
In a time when chronic illness is becoming more prevalent in the workplace, neither side can afford to be “statutory” about how much time off employees need, Wilkerson says.
