Employees who exceed sick day allotment

Best practice for handling employees who exceed their allowed number of sick days

Brian Johnston

Question: If a company has a set amount of sick days per year, how should it handle employees who exceed that amount? If the employee provides medical documentation, does the company have to allow unpaid sick days without discipline?

Answer: Typically, when an employer has a set amount of sick days which are exceeded by an employee, the employer, in the early stages, often encourages the employee to use available vacation days or any other leave days — such as accumulated overtime — so that the employee does not suffer a loss of pay for those excess days. However, if such measures are not available, the employer most often will simply not pay the employee for the legitimate sick day.

The general expectation is that employees attend work and the employer pays them to work. However, there are exceptions whereby employees are permitted to not attend work and are paid nonetheless — vacation and statutory holidays, for example. Most employers have a sick leave program which allows employees to be compensated for a certain number of days of legitimate illness and not suffer any monetary consequences.

However, there are usually limits and sometimes those limits are exceeded. The fact the employee is sick more often than there are available sick days does not create an obligation on the employer to pay more. Rather, the employer typically comes up with some informal arrangement whereby the employee may use, for example, available vacation days or accumulated overtime so as to not suffer any compensatory loss. However, if those measures are not available, the employer does not have to pay the employee.

At the same time, typically, employers do not consider that days away from work which are not contemplated by paid sick days justify discipline, so long as the illness is legitimate. In other words, there is no culpable behaviour in the employee being absent from work.

The employer instead will tend to assess the impact of the employee’s absences and determine whether non-disciplinary measures should be invoked. Those non-disciplinary measures could conceivably result in a declaration of frustration of the employment relationship because the employee is missing so much time from work that the employment relationship is no longer viable.

Brian Johnston is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or [email protected]

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