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Printable version
Refusal of Sick Leave During Maternity Violates Ontario Human Rights Code
A decision of the Ontario Divisional Court on June 4, 1996 suggests that
women employees will be able to invoke the sick leave provisions of their
collective agreements for at least part of their maternity leaves. In OSSTF,
District 34 v. Essex County Board of Education, Carlinda D'Alimonte had
requested that she be allowed to use her accumulated sick leave benefits for
the period of time during labour and after delivery that she would be unable
to work for medical reasons.
The employer refused D'Alimonte's request, granting sick leave only for the
four days preceding the birth when she was unable to attend work. It claimed
that, under the Employment Standards Act, maternity leave had to begin from
the date of birth, at which time sick leave was no longer available. The
union grieved, citing the collective agreement clause which provided that
sick leave was available for "physical or emotional disability certified by
a medical practitioner".
The employer won at arbitration, where a majority of the board held that,
although D'Alimonte had been absent for health-related reasons for at least
part of her maternity leave, sick leave and maternity leave were separate
and exclusive. As a result, the term "physical disability" in the collective
agreement had to be read as excluding disability due to having given birth.
On judicial review, the Court ruled in the union's favour, observing that
the board had accepted evidence that D'Alimonte was unable to work for some
four to six weeks. By reading the phrase "physical disability" to exclude
disability arising from a normal pregnancy, the Court held, the board had
adopted an interpretation that discriminated against pregnant women and
violated Ontario's Human Rights Code.
(For a description of more recent developments, see
"Appeal to be heard in the Essex County
Board of Education case" on our What's New page
and "Ruling on use of sick leave by employees on maternity
leave stands in Essex County case" on our Publications page.)
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