Will the employer be able to require employees to vouchsafe those holidays with a doctor’s note? But with doctors handing out sick notes with abandon, that will hardly solve the problem. Employers could potentially require them to see company-approved doctors. But will the legislation permit that and, indeed, will it permit them to require doctor’s notes at all for one-day absences? Much of the pandemic legislation, including in Ontario, has prohibited requiring doctors’ notes. Will this be any different? And if employees do not even have the inconvenience of seeing a doctor to obtain their notes, what protection is there against universal boondoggles surrounding sick days? By the way, I am not suggesting that employers require a doctor’s note for every alleged illness, only for those which are inherently suspicious, like those around weekends.I had a job many years ago while going to school, at a Hamilton cemetery. I remember well the pressure not to work too hard so as not to show up the union stalwarts. The lowest common denominator ultimately prevailed, crushing the spirits of the new and more spirited. The ultimate ethos: don’t show anyone up by service to the employer and take advantage of all plans that exist.
The unfortunate reality is that, if some employees are taking the full ten days and others suspect that those employees are not genuinely sick, the remainder will feel like the greater fool if they do not. The consequence, in time, is that everyone will. That, too, is my experience with introducing such employer plans. And that experience is not limited to the union sector.
So it took 10 days sick leave for the NDP to jump on board and not throw out the Liberal minority government. This is yet another reason why they should have never been given a further lease on life.
And now on to questions I received recently.
Q: My company says they will apply a 10 per cent reduction in my pay if I decide to work from home. The other option is to go the office. Can they do that?
A: It’s actually a smart move on the employer’s part. It’s your choice if you wish to stay home and earn 10 per cent less. The employer could have made it any lesser salary it chose, as long as you were provided the option of coming to work and maintaining your full salary.
Q: A friend was let go from work due to COVID-19. They gave her four months’ severance. The contract said if she finds a job within the four months her severance would stop. She found a job in two weeks. If she doesn’t call them, how would they find out she found a job. And if they keep paying her, and then find out, what would happen?
A: Depends on what she signed — it could be fraud. If she, based on the agreement, was warranting that she remained unemployed, she could be in great difficulty and, at the very least, could be successfully sued for the recovery of the money.
Q: Can an employer reject me for a position at reception, after asking for my photograph because I am not good looking enough. If it’s only based on a woman’s looks, how is that not discrimination based on sex/gender?
A: Employers are free to discriminate based upon good looks as that’s not a prohibited grounds, as gender is, under human rights legislation. They are not discriminating based upon gender, such as if they said they would only hire a female. They are discriminating between good looking and less good looking males and females. Most discrimination is perfectly legal. Only the few grounds i.e. race, creed, gender, sexual orientation, religion, etc. specified in human rights discrimination constitute illegal discrimination.
Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com.
Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.
