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

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?