Staying Home While I Have COVID: Can I Be Fired?
With concerns rising around COVID-19 in the workplace and having to take two weeks off to quarantine, more people are asking the question, “Can I get fired for staying home while I have COVID?”
Generally, your employer cannot fire you for staying home while you have COVID-19. Employees are protected under the Employment Standards Act, 2000 (the “Act”), which provides for several job-protected leaves. Employees who stay home from work because they contracted COVID can assert any of the following applicable leaves.
How Does the Infectious Disease Emergency Leave address Staying Home While You Have COVID-19?
Section 50.1 of the Act provides job-protected leave for employees who are unable to fulfil the duties of their position for any of the following reasons:
- The employee is under medical investigation, supervision, or treatment for COVID, including receiving the COVID vaccine;
- The employee is following an order under the Health Protection and Promotion Act or under the Reopening Ontario Act;
- The employee is isolating or in quarantine, or is following public health directions or information;
- The employer directs an employee not to return to work out of concern that they may spread COVID in the workplace;
- The employee is caring for or providing support to a specific individual for COVID related reasons, such as:
- Closure of child care or school, or the employee’s decision not to send their child to child care or school, out of concern for the child’s exposure to COVID; and
- Providing care or supporting a child that is receiving the COVID vaccination, or who is experiencing side effects from the vaccine.
- The employee is prevented from returning to Ontario due to travel restrictions.
It is important to note that employees who are eligible to take this leave are not required to provide their employer with a medical note as proof of their eligibility.
So, “Can I be fired for staying home while I have COVID?” – If you are following the above Act, not only are you protected, but employers must also provide their employees with up to three (3) days of paid infectious disease emergency leave, up to and including July 31, 2022. Any days taken after these three (3) days will be unpaid, but continue to be job-protected.
If I Am Staying Home While I Have COVID-19, Can I Take Sick Leave?
Under the Act, employees have the right to take up to three (3) days of unpaid job-protected sick leave during each calendar year, once they have worked for their employer for at least two consecutive weeks. The leave must be due to a personal illness, injury, or medical emergency. You cannot contract out of this minimum entitlement, meaning that if your contract provides for less sick days that the Act, the employee will still be entitled to three (3) days.
An employee can be asked by their employer to provide evidence that is “reasonable in the circumstance” to show that they are eligible for sick leave.
The Ontario Human Rights Code (The “Code”)
The Ontario Human Rights Commission has published a helpful guide that answers the most commonly asked questions surrounding COVID and the Code. Under the Code, an employee cannot be disciplined or terminated by an employer if they have been diagnosed with, or are perceived to have, COVID. Additionally, an employee cannot be disciplined or terminated if they are unable to attend the workplace because they are complying with medical or health officials’ instructions to quarantine or isolate.
In conclusion, the answer to the question, “Can I be fired while staying home with COVID?” is an employee’s job is protected under the Code, which prevents employees from being disciplined or terminated by an employer if they have been diagnosed (or may have) COVID.
If you are an employer who is facing a wrongful dismissal claim or an employee who believes you’ve been wrongfully dismissed, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected] and we would be happy to assist.