Based on the situation you described, here is a detailed overview of medical leave and job protection entitlements under Ontario’s Employment Standards Act (ESA) and Canada’s Employment Insurance (EI) system, as they relate to an employee who became incapacitated on February 24, 2025, after four months of employment.

1. Ontario’s ESA: Sick Leave and Job Protection
Under the Ontario Employment Standards Act (ESA):

Sick Leave Entitlement
Employees are entitled to up to 3 unpaid days of job-protected sick leave per calendar year after 2 consecutive weeks of employment.

Since your employee had 4 months of service, they would have been eligible for this leave at the time of hospitalization.

However, this leave only protects 3 days, and does not extend job protection beyond that period.

Critical Illness Leave / Family Medical Leave / Infectious Disease Emergency Leave (IDEL)
Other longer ESA-protected leaves (e.g., Critical Illness Leave, Family Medical Leave) require:

-6 months of continuous employment, which your employee did not meet.

Infectious Disease Emergency Leave (IDEL), created during COVID-19, is only available in specific pandemic-related situations and likely not relevant here unless hospitalization was due to COVID.

Conclusion under ESA
ESA would have provided job protection for only 3 unpaid sick days.

Because the employee was absent and uncommunicative for over 2 months with no medical communication, you were within your rights under ESA to conclude employment after reasonable attempts at contact.

2. Federal EI Sickness Benefits
Employment Insurance (EI) Sickness Benefits provide temporary income support if an individual cannot work due to medical reasons.

Eligibility Requirements
-600 insured hours of work in the 52 weeks before the claim or since the last EI claim.
-A medical certificate confirming the illness/injury.
-Apply within 4 weeks of becoming unable to work.

Key Issues in This Case
If the employee only worked 4 months (approx. 16 weeks), and assuming full-time hours (e.g., 37.5–40 hrs/week), they may have reached around 600 hours.

However, if they were part-time or casual, they may not have accumulated enough hours.

The late application could be problematic. EI applications normally must be submitted within 4 weeks of work interruption, but:

Late applications can be accepted with a valid reason—e.g., hospitalization and no phone access could be a sufficient explanation. They would need to provide proof of hospitalization and reason for delay.

Benefit Details
-Up to 26 weeks of sickness benefits (as of recent changes).
-Paid at 55% of average weekly earnings, up to a maximum.

3. Human Rights Consideration
While not directly part of ESA or EI, under the Ontario Human Rights Code, employers have a duty to accommodate disability, including mental or physical illness, to the point of undue hardship. However:

The duty to accommodate is triggered only when the employer is made aware (or should reasonably be aware) of the disability.

In your case, if the employee never informed the employer until May 9 and you had no evidence or reason to know they were hospitalized, your duty to accommodate would not have been triggered earlier.

Next Steps
EI Application Support:

You may wish to support the employee in submitting an EI sickness benefits application and a late application explanation.

Provide a Record of Employment (ROE) if not already submitted.

Consider Reinstatement:

Reinstatement is not required under ESA or EI.

However, if feasible, you could consider re-hiring or accommodating the employee based on medical documentation and operational capacity.

Seek Legal Advice:

Given potential human rights implications and the sensitive nature of a medical leave claim, it’s wise to consult employment legal counsel for your jurisdiction to assess risks and options. While you navigate this matter, you can also check out resources on the HRInsider site, like our Special Report on navigating sick leave.

-HRInsider Staff