Don’t do it.
I know what you’re thinking. Your boss won’t mind if you take one of those sick days to go to the pub with your buddies and watch today’s Blue Jays playoff game. Blue Jay Fever is going around.
The Toronto Star sent me four questions about the outbreak of Blue Jays Fever that has hit Toronto workplaces. Two of the
A Different Sort of Avian Bird Flu is Sweeping Toronto
questions weren’t really law questions. They were HRM questions about whether it’s a good idea for employers to let employees watch the game at work. Many employers no doubt will allow that because it can be good for morale and team-building. But if your employer doesn’t do that, and does not grant days off to watch the game, then what?
Here’s the answers I gave the Star.
Let’s expand on those answers for employment law students.
Can employees get away with calling in sick with Blue Jay flu?
Here’s what I said:
A different sort of bird flu is going around, but don’t expect your boss to be sympathetic. Unless you have bargained yourself a contractual right to take a day off or your employer is giving you permission, you have no legal right to take the day off. Any employee who lies about being sick to sneak off to the sports bar is putting their job at risk.
Some employment contracts permit employees a certain number of days off work per year for personal reasons. Some grant “sick days” but the employer doesn’t actually require the person to prove illness. In some cases, employees will have vacation days they can use. Obviously if the contract allows an employee to take a day off to watch a baseball game, then the employee can take the day.
But for most people, their contract won’t include a free baseball day. For those workers, calling in “sick” when you are not actually sick will violate their contract. A nonunion employee who calls in sick with Blue Jays Fever will have violated at least two terms of the contract: the implied term requiring honesty (see McKinley v. BC Tel) and the implied term requiring the employee to avoid absenteeism.
In a unionized workplace, deliberate dishonesty and absenteeism will be grounds for discipline.
What are the repercussions if you’re caught?
Here’s what I said:
Dishonesty and unauthorized absenteeism are both violations of an employment contract that an employer could respond to by discipline or even termination. Non-union employees have less protection because their employers can always fire them for absenteeism, unless the absence is due to a disability or religion. Baseball may be a religion to some people, but the law doesn’t see things that way.
A unionized employer would usually have to show that absenteeism due to Blue Jay fever amounts to “just cause” for discipline. Taking a day off without permission almost certainly would be cause for discipline, but whether the absenteeism is grounds for termination would depend on the employee’s past record.
If a group of unionized employees scheme to all call in sick and watch the game together, that would also be an illegal strike that could result in discipline, termination, and even an order to pay the employer damages for lost productivity. It’s a risky adventure to try and fool your employer in order to watch a baseball game.
The key in relation to nonunion employees is that they can always be terminated for any at all, as long as the reason isn’t a violation of a statute. So for example an employer who terminated a worker for absenteeism related to a disability or religion could be found to have violated human rights legislation. But Blue Jay Fever is not a disability, so the human rights statute won’t apply.
The only legal protection a nonunion employee has is potential entitlement to notice of the termination of the contract. Calling in sick for Blue Jay Fever could lead to a nonunion employee’s termination. Only question is whether the misconduct is serious enough that a court would find that employer had cause for dismissal, in which case the requirement for the employer to give notice is waived.
The unionized worker is in a different situation, because the collective agreement will probably require the employer to have “just cause” to discipline or terminate an employee for absenteeism due to Blue Jay Fever. Calling in sick under false pretences will be cause for some discipline, but how much discipline depends on the circumstances and the employee’s past disciplinary record.
Note the last point I make: that an agreement between two or more unionized employees of a single employer to skip work to watch the Blue Jays game would be an illegal strike. That’s because, in Ontario, we define “strike” very broadly. Read the definition (Section 1 of the Labour Relations Act):
“strike” includes a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding
Can you see how a decision by some coworkers to skip work and watch Blue Jays is caught by that definition? Employees who engage in an unlawful strike can be ordered to pay the employer damages for any lost production caused by the strike.
Reference to my Law of Work Book:
Chapter 9 describes implied terms, including those requiring attendance and the duty to be honest.
Chapter 14 described discipline and termination of nonunion employees for cause (without notice).
Part IV of the book will explore the rules in unionized workplaces and will be released in 2016.
