Jun 17, 2014

Labour Law: Dealing with sick worker doesn’t have to be a nightmare

LABOUR LAW: Dealing with sick worker doesn’t have to be a nightmare

One of the most common calls I get from employers and employees these days is issues arising from sick employees. What can be asked about their illness? If they are off for an extended of period time, when is the employer relieved of the responsibility to hold their job for them? If they do return, what job are they entitled to and what kinds of accommodation?

Except in very rare circumstances, an employee should never be asked for the diagnosis. That is considered private information. Asking for the diagnosis can be considered a violation of the Ontario Human Rights Code.

For employees, maintain your privacy if you like but understand that, right or wrong, employers sometimes find the mystery annoying and become less cooperative.

There is no simple answer to the question about how long one has to hold an employee's job. Unless the employer can prove that it would be an undue hardship on the company to hold the position, it is safest to wait at least two years. At that point the employer should make inquiries from the employee's treating physician as to whether there is any prospect of the employee returning to work in the foreseeable future. If there is not, the employer may be able to take the position that the employment contract is frustrated and sever ties. Of course, if it is perfectly clear earlier that the employee's illness or injury is so catastrophic they can never return to work the relationship can be ended sooner. If it is a workplace-related illness or injury most employers are prohibited from terminating the relationship for at least two years.

This two-year timeline assumes, however, that the employer has been given the appropriate medical documentation to justify the absence, so far as it has asked for it. In some circumstances an employer may not ask for constant updates because it feels confident the absence is justified. In other circumstances they can ask for updated medical documentation on at least a monthly basis. The employer is obliged to pay any costs the treating physician may charge for preparing such a note. The assumption is that if somebody is so sick they can't show up for work, they should be seeing their physician at least once a month for monitoring and treatment.

For employees, the chances of you returning to an agreeable workplace when you are better increase if the employer feels like it is being kept up to date and not having to pry every doctor's note out of you.

An employee has the right to be returned to their pre-disability position. Changing the title and trying to call it a different position will get the employer nowhere. The fact that the employer likes the replacement better or that some aspects of the job have changed during the employee's absence changes nothing. If the core functions of the job are still there and the returning employee can be trained on the new aspects, the job is theirs.

If there have been profound structural changes and the job truly no longer exists, or the employee is unable to return to their pre-disability position because of their limitations, the employer has to pro-actively look for other opportunities within the organization.

If the employee is not satisfactorily returned the workplace and they file a complaint with the Ontario Human Rights Tribunal, the employer is going to be obliged to show that it did everything it could reasonably do, to the point of undue hardship, to facilitate that return to work.

In many cases that's going to include agreeing to a graduated return to work and/or making changes to the job to accommodate the employee's limitations.

What constitutes an undue hardship will be different depending on the size and resources of the employer. I know that for many employers all this seems like a nightmare. Once you've been through it once or twice, however, and understand how it works, it's not as bad as it first appears.

If you're still shaking your head consider it from this perspective: what would you hope for if you had an immediate family member with a serious illness struggling to return to work?

Ed Canning practices labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. You can email him at ecanning@rossmcbride.com .

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