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 fluor 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 includesick leave in the province's labour code, but small businesses argue doing so could put them at risk.

Unpredictable symptoms

According toa recent decision filed at the B.C. Human Rights Tribunal, KatelynHagelwas working as a receptionist forDr. DanialDeheshiinBurnabylast year when she became sickwith 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.

Deheshireplied sayingHagel should stay home and rest until her surgery in two weeks, but Hageltexted back that she couldn't afford to stop working until then.

Application to dismiss denied

According to the decision, Hagelsensed 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 becauseHagelembellished her duties at the clinic on her resume.

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

The Deheshisappliedto dismiss the complaint, but their application was denied.

In her decision,tribunal member BarbaraKorenkiewiczacknowledged that staffing issues in a small office can be a challenge when anemployee is unpredictablysick.

However, Korenkiewicz said the Deheshishad 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 typeof caseinclude 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 mostprovinces in Canada don't currently includesick leave in their employment standards legislation. However, Ontario is currently examining the issue and is looking at includingup 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.

"Partofthis 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.

'Definitelyworrisome'

But the Canadian Federation of Independent Businessargueslegislation to provide paid and unpaid sick leave would come at a big cost formany entrepreneurs.

"Small businessesoften 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 businessesto succeed,that's definitelyworrisome."

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.