Can You Be Fired While on Sick Leave in Ontario?

If you've been fired while on sick leave in Ontario, you may be entitled to termination pay, severance pay, or damages for wrongful dismissal. The Employment Standards Act (ESA) provides minimum protections for employees, including those on sick leave. However, the specifics of your situation, including the terms of your employment contract and the reasons for your termination, can affect your entitlements. It's essential to consult with an employment lawyer to understand your rights and options.

Introduction to Employment Rights on Sick Leave

If you're an employee in Ontario, you have certain rights and protections under the Employment Standards Act (ESA). These rights extend to employees who are on sick leave, including those with a disability or illness. The ESA sets out minimum standards for employment, including termination pay and severance pay. However, the common law may provide additional protections and entitlements beyond the ESA minimums.

Understanding ESA Sick Leave Protections

The ESA provides that an employee who is on sick leave and terminated may be entitled to termination pay and severance pay, depending on their length of service and the reason for their termination. To be eligible for ESA termination pay, an employee must have been employed for at least three months. The amount of termination pay varies from one to eight weeks, depending on the employee's length of service. For severance pay, an employee must have been employed for at least five years and the employer must have a payroll of at least $2.5 million or have terminated the employment of 50 or more employees in a six-month period.

Common Law Notice and Damages

In addition to ESA protections, an employee who is fired while on sick leave may be entitled to common law notice and damages. The common law requires that an employer provide reasonable notice of termination, which can range from several months to over a year, depending on the employee's length of service, age, and position. If an employer fails to provide reasonable notice, the employee may be entitled to damages for wrongful dismissal.

Termination While on Disability Leave

If you're on disability leave and your employment is terminated, you may have additional rights and protections. The Ontario Human Rights Code prohibits discrimination on the basis of disability, and an employer must accommodate an employee's disability to the point of undue hardship. If your employment is terminated while you're on disability leave, you may be able to claim damages for discrimination and wrongful dismissal. For more information on wrongful dismissal and severance pay, visit our pages on wrongful dismissal and severance pay. You can also use our severance estimator tool to get an estimate of your potential severance entitlements.

Constructive Dismissal and Sick Leave

Constructive dismissal occurs when an employer makes significant changes to an employee's employment contract, including a reduction in pay or benefits, or a change in job duties. If you're on sick leave and your employer makes changes to your employment contract, you may be able to claim constructive dismissal. This can be a complex area of law, and it's essential to consult with an employment lawyer to understand your rights and options.

Termination Packages and Releases

If you've been fired while on sick leave, your employer may offer you a termination package, which can include a release of claims against the employer. It's essential to carefully review any termination package and seek legal advice before signing a release. A release can limit your ability to claim additional damages or entitlements, and you should ensure that you understand the terms and implications of any release. To book a free consultation with an employment lawyer, visit our contact page. We also have additional resources on wrongful dismissal in Ontario.

Conclusion

If you've been fired while on sick leave in Ontario, it's essential to understand your employment rights and options. The ESA provides minimum protections, but the common law may provide additional entitlements. Consult with an employment lawyer to get expert guidance and advice on your specific situation.