Can They Fire Me for Calling in Sick? Understand Your Rights in Canada

Many employees in Alberta and across Canada worry about their job security when they have to call in sick, especially if they need to do so for a longer period of time or frequently for various reasons. In many situations, calling in sick is a protected right under employment laws, but there are circumstances where it might not be, depending on your employer’s policies, the nature of your illness, and the duration of the leave.

Understanding the nuances of these rules can provide peace of mind and help ensure you’re taking the right steps if you ever face this situation. So, when asking ‘Can they fire me for calling in sick?’, it’s important to understand both your legal rights and your employer’s policies.

Understanding Employer Policies on Sick Leave

Employer Expectations for Sick Days

Each employer may have different expectations when it comes to sick leave, so it’s important to understand their specific policies on the following:

• Call-in Procedures and Timelines: Most employers expect employees to notify them as soon as possible when they’re unable to work due to illness. This often means calling in at least an hour or two before your shift starts. Be sure to follow your employer’s guidelines regarding the timing and method of communication (e.g., phone call, email, or text).
  
• When a Sick Note is Typically Required: Many employers will ask for a doctor’s note if you are off for an extended period of time (usually three days or more). Some may also require it after frequent short-term absences.

These details are often referenced in the employee handbook. It’s essential to familiarize yourself with this information to avoid any surprises.

Common Absenteeism Policies

In addition to sick leave, employers typically have absenteeism policies in place to track and manage employee attendance. Here’s what you need to know:

• How Absenteeism is Tracked: Employers usually keep records of your absences, including sick days. They may track this on a monthly or annual basis to ensure that employees are taking sick leave in accordance with company policies. Some companies may even track the frequency of short-term absences to assess any patterns.
  
• What Happens When You Miss Multiple Days: If you miss multiple days in a row or have frequent absences, your employer may ask for a more detailed explanation of your illness, request a doctor’s note, or initiate a discussion to explore any underlying issues that may be affecting your attendance.
  
• Progressive Discipline Policies: If your employer believes your absence from work is excessive, they may choose to pursue progressive discipline to address the issue. For example, the employer may start with a verbal warning, then escalate to written warnings, suspension, or even termination if the issue isn’t resolved to their satisfaction. Understanding how your employer applies progressive discipline can help you know what to expect if your absences raise concerns.

Legal Protections for Employees

Employment Standards Protections

• According to the Alberta’s Employment Standards Code, employees taking sick leave have job protection, meaning they cannot be fired or penalized for taking time off due to illness, as long as they follow the Code when doing so. 
• Short-Term Illness vs. Long-Term Disability: For short-term illness, employees are generally protected as long as they follow the proper procedures. However, if the illness extends into a long-term disability, additional protections may apply, such as the requirement for the employer to accommodate the employee’s condition under the Alberta Human Rights Act. This could include modifications to work duties or additional leave.

Human Rights and Medical Accommodation

In addition to the protections offered by the Employment Standards Code, Alberta’s human rights law provides further safeguards for employees dealing with illness or injury, particularly when it’s considered a disability.

• When Illness May Be Considered a Disability: Under the Alberta Human Rights Act, an illness may be considered a disability if it limits a person’s ability to carry out essential functions of their job. This includes both physical and mental health conditions that substantially affect a person’s ability to work. 
• Your employer’s duty to accommodate: Employers in Alberta have a legal duty to accommodate employees with disabilities. This could include modifying work duties, adjusting work schedules, or providing additional leave time, unless doing so would cause undue hardship to the employer. 
• Protected grounds under Alberta Human Rights Act: The Act outlines several protected grounds, including disability, which means employers cannot discriminate against an employee based on their illness or health condition. If your illness qualifies as a disability, you are protected from being terminated or penalized due to your health condition.

Exceptions and Limitations

While employees are generally protected when they need to take sick leave, there are some exceptions and limitations where job protection might not apply. These situations usually involve the employer’s ability to take action if certain conditions are met.

Termination for Cause Related to Absenteeism

In some cases, an employer may be legally justified in terminating an employee for cause due to absenteeism. Common scenarios include:

• Repeated, undocumented absences: If you frequently call in sick but don’t provide the required documentation or fail to follow company procedures, your employer may have grounds for termination.
• Failure to follow internal reporting procedures: Employers typically have specific guidelines on how employees should report their absence. Consistently disregarding these procedures can put your job at risk.
• Performance concerns linked to extended time off: If your extended sick leave negatively impacts your performance or the performance of the team, your employer may begin to assess whether continued absence is affecting the business’s ability to function effectively.

Frustration of Contract

Sometimes, a long-term illness may result in the frustration of contract, a legal concept where the employment relationship becomes unworkable. This typically applies in situations where an employee is unable to perform their duties due to a long-term or permanent illness.

If an employee is unable to work for a long period of time due to a severe illness and cannot fulfill the essential duties of their role, the employer may argue that the employment contract is frustrated.

Frustration of contract can lead to a no-fault termination, which means the employer can end the employment relationship because it’s impossible for the employee to continue working. Unlike a regular termination, this doesn’t reflect any wrongdoing by the employee.

Misuse or Abuse of Sick Leave

Employers have the right to take action if they suspect sick leave is being misused or abused. They may monitor absenteeism patterns and, if they notice suspicious trends, such as frequent sick days taken around specific times (e.g., long weekends), they have the right to investigate potential abuse of sick leave.

If an employee falsely claims illness to avoid work or uses sick leave for reasons other than illness, such as taking vacation or personal time, it could result in disciplinary action, including termination.

Seeking Recourse for Unlawful Termination

Recognizing When It’s Wrongful

While employers do have the right to terminate employees for legitimate reasons, watch for the following red flags that might indicate your termination was unlawful:

• You were fired solely because of your illness or frequent sick days, especially if you followed all of your employer’s policies and procedures.
  
• You were terminated while on sick leave, especially if your illness qualifies as a disability under the Alberta Human Rights Act.
• Your termination is linked to your disability, illness, or health condition.
  
• The termination letter does not mention the reasons for your dismissal or contains inconsistencies.

What to Do Next

If you believe your termination may be unlawful, here’s what to do:

• Documenting your situation: Keep a detailed record of any communication with your employer related to your sick leave, including emails, written notices, medical documentation, and any conversations or meetings. Make note of the dates of your absences, when you notified your employer, and any responses you received. This documentation will be crucial if you decide to challenge the termination.
  
• When to contact an employment lawyer: If you suspect your firing was unlawful, it’s important to consult with an employment lawyer as soon as possible. They can review your case, clarify your options, and guide you through the process.

If you decide to challenge your termination, it’s important to act quickly, as there are deadlines for filing wrongful dismissal claims.

Why You Should Consult an Employment Lawyer

Benefits of Legal Support

Clarity

Consulting an employment lawyer helps you understand how employment and human rights law apply to your specific situation. A lawyer can clarify whether your termination was lawful, what protections you have, and how to navigate the legal complexities surrounding sick leave and employment termination. They will help you assess whether your dismissal was justified and if you have a case for wrongful dismissal.

Peace of Mind

Having an employment lawyer on your side means you don’t have to face your employer alone. Knowing that an expert is advocating for you and handling the legal aspects of your case provides invaluable peace of mind. A lawyer can guide you through every step of the process, making sure your interests are represented.

Strategy

An employment lawyer can help you evaluate any severance offers, ensuring that the compensation is fair and in line with the law. If needed, they will help you pursue legal remedies where appropriate, whether that means negotiating a better severance package, filing a wrongful dismissal claim, or seeking other compensation. 

Book a consultation with Cashion Legal to understand your options and get tailored advice.

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