On May 2, 2014, Global News reported that the French Parliament will now allow workers to anonymously donate days off to help co-workers dealing with a seriously ill child.
This news item caused me recall approximately eight years ago when, as a parent, I sat beside my then 2 year old son at Sick Kids Hospital in Toronto as he received lifesaving treatment from the wonderful physicians and nurses there. I was on maternity leave at the time with my other newborn son so time away from work was not an issue for me. However, my husband was working. Neither one of us wanted to pull ourselves away from our seriously ill son’s side. My husband was fortunate enough, at the time, to have an extremely generous and understanding employer who allowed him the paid time off. Happily, our son recovered and all is well now.
Having a seriously ill child can require a parent to make some tough choices though when it comes to taking time off work. When vacation time is depleted, in Ontario, there are various unpaid leaves of absences which are available. There are also some Employment Insurance benefit payments which parents may access however those payments do not replace an employee’s full pay.
Ontario employers are not required by statute to provide paid sick days to an employee. While some employers do provide paid sick days as an additional benefit or pursuant to a negotiated collective agreement, that paid time off is limited and may not be sufficient. This may result in some employers considering whether they can allow the donation of paid sick time off from one employee to another, similar to the now legislated provisions in France.
Under the provisions of the Employment Standards Act of Ontario (the “Act”), an employer and an employee cannot contract out of the Act (s. 5 (1)). This means that an employee cannot give up or give away their statutory entitlements. So, for example, an employee could not give up (which includes an inability to transfer) their statutory vacation time or statutory vacation pay, their paid public holidays, or any other statutorily protected leave of absence.
However, because sick days are not a statutorily mandated requirement, when an employer decides to grant such an entitlement by way of policy, it is free to create the parameters for use of those sick days.[i] An employee may also donate other non-statutory paid days off (for example vacation days in excess of the statutory minimum). If an employer were to wish to permit for donation of sick or other paid time off days, its policy can include provisions which outline:
- Which employees are eligible to donate (For example, full time employees only? All employees?)
- The circumstances under which an employee can donate his/her paid time off days to another employee (For example, is it only when the recipient needs them in order to attend to an ill child or are there other permissible circumstances?);
- Whether employees donate directly to the affected employee or into a central donation bank;
- The circumstances under which a recipient employee can use donated days (For example, only after using all their other non-donated paid time off days, or when they are not receiving WSIB or other disability income; only when they provide medical documentation substantiating the need for the leave etc.);
- What type of paid time off days are permitted to be donated (For example, sick days only);
- How many paid time off days an employee is permitted to donate;
- Whether partial paid time off days may be donated;
- Whether there are circumstances where the employer can negate/ deny the donation (For example, if the business operations require certain employees to be present because of their skill/ ability/ expertise/ high ranking position);
- Whether donated paid time off days will be returned to the donor in the event they are not used/ needed by the recipient;
- Whether donated paid time off days will be permitted to be carried over into a following calendar year; and
- Whether donated paid time off days, if not used, have a cash value to the recipient employee.
Failure to properly implement a well thought out policy on donation of paid time off may leave both employers and employees feeling less than charitable.