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THE QUESTION
My company is moving to a hybrid work schedule. Everyone is in the office for the same three days, then the other two days we work from home. However, I recently learned of a policy that if you’re too sick to come in on an in-office day, you must take a sick day, even if you are well enough to work from home. This seems like a ridiculous policy.
We’re all going to burn through our sick days so quickly. Or people will feel pressured to come in with a minor cold or something contagious when they should really be at home and not getting the rest of us sick. Is this type of workplace policy legal?
THE FIRST ANSWER
Omar Abougoush, principal lawyer, Abougoush Law, Edmonton
Unfortunately, I must give the classic lawyer answer of “it depends.” This policy is likely legal because employers are generally allowed to determine where the work is performed unless your employment contract explicitly states where the location of work is, if it is subject to change, if it is at a fixed location, etc. So, it depends on what your employment contract allows for. On the surface, this policy looks legal. Whether it is a good policy is a different question.
Let’s dissect this question into two main concerns: (1) burning through your sick days when you wouldn’t need to, and (2) feeling pressured to come into the office when you have a minor illness.
An employer wouldn’t want someone who is contagious coming into the office, so maybe it would be wise for them to change this policy to allow that person to work from home. On the other hand, an employer also wouldn’t want the work-from-home option to be taken advantage of over the long run. In my opinion, the bottom line is that an employer can adopt a policy providing that, if an employee is too sick to attend the office, the employee should be resting rather than working from home. That is generally within the employer’s managerial discretion.
However, if your illness amounts to a disability, this analysis changes. Working from home as a reasonable accommodation may be your right if your disability requires it and it is supported by medical documentation.
This policy may result in employees burning through their sick days and feeling pressured to come into the office with a minor illness. Those are legitimate concerns, but they do not necessarily make the policy illegal. It is up to the employer whether they wish to ignore those legitimate concerns or amend the policy to keep their employees happy. You should, of course, speak to an employment lawyer to review your employment contract and the policy to determine what, if anything, can be done.
THE SECOND ANSWER
Ryan Edmonds, managing partner, Ryan Edmonds Workplace Counsel, Toronto
This is a good example of a policy that may be legal in principle but poorly designed in practice.
In Ontario, subject to the terms of an employment contract, an employer is generally entitled to decide when employees must attend the workplace. If the employer has chosen in-office days for collaboration, training, culture or supervision, it can usually insist on in-person attendance.
Contrary to common belief, most run-of-the-mill ailments, including the flu, are not considered a “disability” under the Human Rights Code. This means an employer is generally not required to accommodate or modify work for such ailments, and an employee is usually not protected from discrimination simply for having them.
At the same time, employers have a statutory obligation to protect workplace health and safety. Complicating matters is the employer’s legitimate concern about abuse. “Too sick to come in, but well enough to work from home” can become a loophole that undermines the well-intended purpose of hybrid in-office attendance.
The problem with the policy described by the reader is its blunt-force approach to a multifaceted issue.
A better policy would preserve managerial discretion. For example, a manager might choose to briefly speak with the employee to understand if they are fit to work remotely and whether attending the office poses a concern. A manager can also, where appropriate, request reasonable proof of illness (however, doctor’s notes cannot be requested for statutory sick days).
Suspected abuse should be tracked through normal attendance-management processes and, where founded, addressed through discipline up to and including termination.
So yes, the reader’s policy may be “legal.” But that does not make it sensible. As with most workplace disputes, common sense should prevail.
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