Interpretation: sick leave, article 12.01

The calculation of the sick leave and the C.N.E.S.S.T.

Does one have to calculate 2.44% on the amounts paid by the C.N.E.S.S.T. following a work-related accident?

Answer : no, because article 12.01 stipulates “2.44% of the paid hours”. They are obviously the hours paid by the employer.

What happens with the first 14 days which follow a work-related accident and which are paid by the employer?

Answer : these first 14 days are not truly paid by the employer, but advanced to the employee and are not refunded by the C.N.E.S.S.T. There is thus no 2.44% on these sums.

Interpretation: sick leave, article 12.02

1. Excess sick leave hours at October 31

The right to a sick leave excess of hours is acquired by the employee on October 31. Thus, the employee terminated or laid off in a final way before this date, is not entitled to any excess, since he or she is no longer employed when the right to the excess commences.

On the other hand, the employee laid off on this date, or later, is entitled to it.

However, the employee laid off for lack of work who did not receive a Record of employment nor severance pay is considered employed, and article 12.02 must apply.

2. The excess sick leave hours and the calculation of vacation

The sick leave excess of hours payable before December 10 is an earning. For this reason, this amount must be included into the total of earnings as of the following April 30 in order to calculate the vacation pay.

Interpretation: sick leave, article 12.03

1. The proof of illness and the medical certificate

Article 12.03 is clear: the employer can require a medical certificate. However, logic and jurisprudence establish the occasions when the employer can require it. Thus, it would be impossible for the employer to ask the employee, at the time of his return to work, to provide a medical certificate. The employee, obviously not being sick at the time of his return to work, cannot go to a doctor and have a note made that he was sick in the days which preceded.

The medical certificate will thus have to be required at the time of the call of the employee to report his illness, or during the illness.

Moreover, an employer can advise one, some or all its employees, indicating in writing the guidelines of the company in the case of illness. However, these guidelines must follow two criteria:

    1. They cannot be excessive or unreasonable;
    2. They must respect private life, as stipulated in the Charter of Human Rights and Freedom of Québec.

In fact, jurisprudence shows that even if the employer has the right to inquire about the reasons for the employee’s absence, he cannot exercise this right unreasonabily. Thus, he can’t require a medical certificate or a proof of illness for all absences, regardless of the circumstances. Some particular situations may require proof of illness. For example, in the case of an employee with a record of absenteeism or frequently absent the day before or after a holiday, it would be considered reasonable to require a proof of illness.

As for private life, the employer cannot require to know the nature of illness or the motive for consultation. It would go against article 5 of the Charter of Human Rights and Freedoms of Québec: “Every person has a right to respect for his private life”.

Jurisprudence : 

de volaille de Ste-Rosalie (C.S.N.) vs Olymel Flamingo
D.T.E. 2000T-764

Teamsters Québec, Local 931 vs Médis,
services pharmaceutiques et de santé inc.
D.T.E. 2000T-1113

2. Work-related accident in another employment

What happens when an employee has a work-related accident on his day job (which is not maintenance) and who cannot work at his second employment which is maintenance, in the evening?

This case is envisaged in article 71 of An Act respecting occupational health and safety. This article provides that if the employee occupies more than one employment, the calculation of the allowance is done on the basis of the most remunerative employment.
In our example, if the allowance were calculated on the basis of use of the day employment only, it would be then permissible for the employee to claim the payment of hours of illness from his employer in maintenance.