One of the biggest headaches that employers face is dealing with employee attendance issues.
Monitoring and dealing with sick leaves and the required documentation is very confusing and complicated. Worse, you risk violating Employment Standards or Human Rights legislation if you don’t handle the situation correctly.
Here are some basic “Q&A’s” for employers with less than 50 workers:
Personal emergency leave: This leave is only available to organizations with 50 or more employees. It provides up to 10 days off to deal with doctor’s appointments, sudden illness, a house fire or things like bereavement leave. If your organization has less than 50 people, no emergency leave provision exists for your employees.
Family medical leave is available to anyone covered under the Employment Standards Act (check the “Special Rule Tool” to find out who’s not). This leave provides up to 8 weeks off to deal with the illness and death of a family member. Since this leave is subject to Employment Insurance claims the same certificate used to claim EI is used to confirm eligibility for the leave, even if the employee chooses not to file for Employment Insurance benefits.
What is Culpable Absenteeism? This term applies to an employee who is guilty of habitual neglect of duty, defined as persistent lateness or leaving early without permission or abuse of sick leave as mentioned below. If your employee fails to provide proper documentation after repeated warnings, you may have “just cause” to terminate their employment.
Innocent Absenteeism, like the name suggests, occurs when an employee is not able to fulfill the obligations of their employment contract due to some circumstance beyond their control, illness or otherwise, that prevents them from attending work on a regular and productive basis. This situation must be a long-term ongoing issue, with no hope of positive resolution for either side, if the employer wishes to terminate. This is likely the most complicated area of the Attendance Management process, especially if the cause for absenteeism is an illness or disability as defined under the Human Rights Code.
WSIB Claims: Fortunately, WSIB has clear cut rules and people to ask (adjudicators) when it comes to dealing with illness and injury related to work.
There are forms to be filled out by both worker and employer, and physicians provide most of the documentation. Employers are required to stay in contact with the employee to determine updates and opportunities to return to work as soon as possible.
The WSIB also has re-employment criteria: If your organization employs more than 20 people and/or the employee has worked for you for more than one (1)year, you must hold a job for the ill/injured employee to return to for up to 1 year after he/she is medically cleared to return to work; or two years from date of injury; or age 65, whichever comes first
What is “suitable work? Whether on WSIB or not, if temporary modified (light) duties or a complete change in permanent job is required, “suitable work” means it is safe and within the workers physical capabilities; the worker has or can easily learn skills for the new job; and this job restores pre-injury earnings as much as possible
“Sick Leave”: Employees on sick leave for an illness or injury not compensable by WSIB are required to provide “evidence that is reasonable in the circumstance” to prove their illness/disability. If you see a pattern where an employee begins taking “sick days” off, you have the right to ask for a doctor’s note to confirm the illness. Vague notes stating “Joe is unable to work for four weeks” with no other supporting documentation are not enough.
Basically, if you have less than 20 workers in your organization, in cases where the illness is not covered by WSIB then the workers have no protection under the Employment Standards Act. Employers have the right to ask for proper medical documentation, similar to what you would get with a WSIB claim. You are not required to offer modified duties to the worker, since they can claim Employment Insurance medical benefit. Generally, if the employee qualifies under the EI provision, then the illness/injury is deemed to be confirmed.
You should not ask for a diagnosis of the employee’s illness or injury. Employers need only to determine what tasks the employee is physically capable of performing, and whether or not this situation is likely to be permanent, in order to properly comply with any human rights issues.
Employers have the right to expect honesty and integrity from their employees when it comes to attendance in the workplace. If an employee’s use of sick time or absenteeism is determined to be dishonest, the Supreme Court has ruled that such dishonesty “violates an essential condition of the employment contract, breaches the faith inherent in the working relationship, or is fundamentally or directly inconsistent with the employee’s obligations to his or her employer” (McKinley vs BC Tel, 2001).
In all cases of employee absenteeism, please remember this rule: “DOCUMENTATION IS YOUR FRIEND”. Make notes of the dates/times of absence, any “patterns” you see developing (i.e. something in the workers personal life affecting attendance), and especially document any discussion (s) you have with the employee regarding this behaviour.