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Down and Out or Up and About?: What's considered permissible activity on sick leave

Tuesday, May 15, 2018, 12:30 pm - 2:00 pm EDT

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Carissa Tanzola

Workplace Safety and Insurance Appeals Tribunal


Kelly Nychka

Union Counsel
Chivers Carpenter
Dr. Perry Sirota

Clinical and Forensic Psychologist

Danny Bernstein

Employer Counsel
Roper Greyell


In the minds of many, an employee taking a sick day or on sick leave is in bed surrounded by piles of tissues or possibly trying to rest despite great pain, unable to do much of anything. Is this a legitimate conception of what an employee on sick leave should be doing though? In fact, many healthcare professionals view socializing and "getting-out" as important aspects of treatment or recovery for individuals with mental illnesses. In this session experts will answer the pressing question: What can employees do while on sick leave? They will also discuss methods of preventing sick leave abuse while respecting employees' privacy and human rights.

How sick is sick?

  • What constitutes illness for the purposes of entitlement to sick leave and sick pay? Must an employee be completely unable to work?
  • Can sick days be used "prospectively" in regard to mental health, i.e. can they be used to rest or engage in "self-care" in hopes of preventing a greater mental health problem? What if problems in the workplace, such as impending discipline or interpersonal conflict, are the cause of the stress or mental health concern?
  • Can employees take sick days for relatively minor "self-inflicted" conditions, like hangovers? Do employees have an obligation to refrain from personal activities that may reasonably result in illness or injury that would prevent them from working as scheduled?
  • Given the new amendments to the Ontario Employment Standards Act which prohibit employers from requiring medical certificates from employees taking personal emergency leave, are employees in Ontario now free to take two paid days off – and eight unpaid days off – for any reason as long as they designate those days "personal emergency leave?"

Going to the doctor, caring for others, working, and going on vacation:

  • Can employees use paid sick leave to attend medical appointments or is there an obligation to schedule medical appointments outside of work hours? Does it matter whether the appointment is a routine medical appointment, e.g. an annual physical, or an appointment required for treatment of an illness or disability?
  • Can employees use paid sick leave to care for sick children or other family members?
  • Can employees work at their own businesses or for another employer while on sick leave? If they can do some type of work, shouldn't they be doing some sort of accommodated work for the employer that has granted sick leave?
  • What is acceptable activity for an employee on leave for mental health issues? How should employers respond to reports of such employees engaging in social or recreational activities or travelling? Are Facebook pictures of an employee smiling and laughing evidence that the employee is not depressed?

Preventing abuse and disciplining fraudsters

  • In what circumstances have arbitrators found it reasonable for employers to suspect sick leave abuse and demand information beyond what is usually required to support such leave? When has requesting more information to substantiate the legitimacy of an employee's sick leave been held to be unreasonable or even harassment?
  • When, is it appropriate for an employer to conduct covert surveillance of an employee suspected of sick leave fraud?
  • Does abuse of sick leave always justify discharge? Or are there circumstances in which damage to the trust underlying the employment relationship can be repaired?

Additional Information

Valuable, up-to-date materials and case summaries will be available for downloading from our website. Each audio conference is accompanied by a PDF of concise summaries of the cases discussed.

Audio conference MP3 files are available for $255. Those who have purchased the live audio conference may purchase the corresponding downloadable audio MP3 file for the discounted price of $155.

The recorded MP3 file and materials are available for download one business day after the live audio conference. After purchasing, you will receive an e-mail with instructions on how to access and download the audio conference MP3 file and materials by visiting My Account and selecting Order History. For audio file purchases for upcoming audio conferences, once the MP3 file is available through our site, registrants will receive an update e-mail informing them that the links are now ready.

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