Lack of sick leave in Employment Standards Act a factor in B.C. human rights case

A dental receptionist who alleges she was fired because she was sick and couldn't afford to take unpaid leave has had her case accepted at the British Columbia Human Rights Tribunal.

In B.C., as in many provinces across the country, labour law does not entitle workers to any paid or unpaid sick days.

That means many employees take a financial hit if they call in sick with the flu or a burst appendix, and employers can dismiss their staff if they miss too much work because of an illness. 

Labour advocates say the case highlights the need to include sick leave in the province's labour code, but small businesses argue doing so could put them at risk. 

Unpredictable symptoms

According to a recent decision filed at the B.C. Human Rights Tribunal, Katelyn Hagel was working as a receptionist for Dr. Danial Deheshi in Burnaby last year when she became sick with an undisclosed illness.

The decision says Hagel's symptoms were "varied and unpredictable," causing her to miss 11 full and three partial days of work over about eight weeks. 

One day in mid-October, Hagel texted office manager Fereshta Deheshi to say she wasn't feeling well.

Deheshi replied saying Hagel should stay home and rest until her surgery in two weeks, but Hagel texted back that she couldn't afford to stop working until then. 

Application to dismiss denied

According to the decision, Hagel sensed her job was in jeopardy, and applied for a job on Craigslist later the same day. That job, unbeknownst to her, was at the Deheshis' dental clinic. 

They fired her the next day.

The Deheshis allege they let her go because Hagel embellished her duties at the clinic on her resume.

Hagel filed a complaint with the tribunal on the basis of physical disability, arguing her employer pressured her to take unpaid sick time when she was able to work.

The Deheshis applied to dismiss the complaint, but their application was denied.

In her decision, tribunal member Barbara Korenkiewicz acknowledged that staffing issues in a small office can be a challenge when an employee is unpredictably sick.

However, Korenkiewicz said the Deheshis had not provided enough evidence that they had accommodated Hagel to the point of undue hardship. 

'No hard and fast rules'

Labour and human rights lawyer Elizabeth Reid said cases like Hagel's are common in her field. 

"This is bread and butter for employment lawyers," Reid said. 

"One thing that is challenging for everyone involved is that there are no hard and fast rules," she said. 

 According to Reid, factors the tribunal usually considers in this type of case include the size of the office, as well as the nature of the illness and its impact on other staff and the business. 

Reid points out that most provinces in Canada don't currently include sick leave in their employment standards legislation. However, Ontario is currently examining the issue and is looking at including up to 10 sick days per year, two of them paid. 

Review in B.C. underway

Irene Lanzinger, president of the B.C. Federation of Labour, said her organization has been advocating for sick leave for years. 

"No one should have to go to work when they're sick," Lanzinger said, pointing out that illness can spread to healthy workers when employees feel forced to show up for work. 

The B.C. Ministry of Labour declined a request for an interview, but said in a statement that it will be updating its employment standards next year.

"Part of this work includes looking at what other provinces have in place," the ministry said.  

The B.C. Law Institute is currently conducting an independent review of the Employment Standards Act, the ministry said, and is scheduled to issue a report in early 2018. 

'Definitely worrisome'

But the Canadian Federation of Independent Business argues legislation to provide paid and unpaid sick leave would come at a big cost for many entrepreneurs. 

"Small businesses often operate on very thin margins in very competitive markets," said Richard Truscott, the federation's vice president for B.C. and Alberta. 

"Any time governments make it more difficult for small businesses to succeed, that's definitely worrisome."

Truscott said many small businesses can't accommodate sick employees in the same way as larger organizations. Still, he says many do as part of their benefits packages to attract employees.

"I think employers need to have a reasonable amount of flexibility in the workplace to deal with these issues," he said.