by Daniel Pugen
McCarthy Tetrault
An increasingly difficult task for HR professionals is managing absences related to injury and illness. How far can you go to make an employee prove he or she is legitimately ill or legitimately able to return to work without restriction? The following are some tips to help your Canadian business manage an employee’s absence from work as well as his or her return to work.
Employee’s absence from work
- If you doubt the legitimacy of an employee’s “medical reason” for absence, actively pursue detailed medical documentation supporting the absence.
- Ask nonunion employees to consent to the release and disclosure of medical information and documents.
- If a nonunion employee refuses consent, you may be able to deem him to be on an unapproved leave of absence, to have abandoned his employment, or to not be disabled. Don’t be afraid to communicate your position to him.
- For unionized employees, consider whether the applicable collective agreement gives you rights to obtain medical information. If it’s silent, seek the employee’s consent.
- Don’t be bullied by a union official who may try to tell you that you have no right to obtain such medical information. You do when there is good reason to question the employee’s claim.
- Keep in mind that you have no obligation to grant a medical leave of absence or accommodate an employee’s “illness” or “injury” until she proves that she really is disabled. Employees also must prove that the leave of absence or requested accommodation is necessary. Don’t be afraid to ask.
- Understand that employees may be entitled to permissible statutory leaves of absence (either with pay or without pay). For example, in Ontario, in workplaces with more than 50 employees, workers are entitled to 10 days off (without pay) for illness, injury, or an emergency concerning the employee or certain family members. Employees must inform their employers of the leave and must (on the employer’s request) provide reasonable evidence/documentation justifying the day off.
Employee’s return to work
- Don’t feel you have to take at face value a one-line doctor’s note written on prescription pad paper.
- Pursue detailed medical documentation to satisfy yourself that the employee is indeed capable of returning to work. Satisfy yourself that he won’t jeopardize his own health and safety or the health and safety of others by returning to work.
- Ensure that you’ve been made aware of all of an employee’s restrictions. Ask the employee to have her doctor confirm:
- What workplace activities she can or can’t perform.
- What steps you can take to accommodate her.
- If the employee refuses to provide you with the above information, consider not allowing him to return to work.
- Keep in mind that you’re entitled to know the extent of an employee’s ability to work and exactly what types of accommodations are required before returning her to work. Don’t be afraid to ask.