I am often asked what “the rules” are regarding provision of sick leaves, requesting doctor’s notes and what is considered “acceptable conduct” by both the Employer and the Employee.
Employers are not required to provide Employees with “sick leave”, or other leave days, beyond what is established in the Employment Standards Act (ESA) or other legislation. The ESA currently provides 10, unpaid “Personal Emergency Leave” (PEL) Days for Employees to be ill or to be off work for other genuine “life emergencies” as well as providing other Leaves of Absence such as parental leave. Although these leaves are unpaid (not covered by the workplace), Employees may be able to claim Employment Insurance benefits.
Currently, the PEL Days only apply to workplaces with more than 50 Employees. Workplaces that have fewer than 50 Employees have no provisions for sick days under the ESA, which means that any day off is subject to attendance management policies.
If the Fair Workplaces Better Jobs Act (Bill 148) passes, all Employees in Ontario who are covered by the ESA will then have access to the 10 PEL Days. In addition, Employers will no longer be able to request a doctor’s note from the Employee who uses the Personal Emergency Leave days provided under the ESA. This change does NOT apply to Employees who are currently on a Return to Work Program, it only applies to the 10 PEL Days.
Employers and Employees have the right to expect honesty and integrity from each other. Employers must be careful that while they are entitled to communication regarding the Employee’s status, they should not be calling every day asking when or if the Employee will be returning to work. Employers must also be careful to protect the privacy of the Employee’s health and personal information and ensure that other Employees or persons from the Workplace are not having inappropriate workplace discussions or (and this often happens!) harassing the ill worker through social media or other means.
What can an Employer ask for?
Employees suffering from an illness or injury are required to provide “evidence that is reasonable in the circumstance” to prove their illness/disability. Vague notes stating “Joe is unable to work for four weeks” with no other supporting documentation are not enough. Acceptable documentation can include physician’s reports, WSIB forms, and Functional Abilities Forms (FAF).
Employers should not ask for a diagnosis of the Employee’s illness or injury; however, they are permitted to confirm with the attending physician what tasks the Employee is physically and/or mentally capable of performing (generally using an FAF), and whether or not this situation is likely to be permanent, in order to properly comply with any accommodation requirements. This is protected under Human Rights legislation.
The “Attending Physician” for the Employee can be their Family Doctor, but where there are complex illnesses or injuries the Employer is permitted to insist that the Attending Physician is a Specialist, for example an Orthopaedic Surgeon to deal with a bone break.
Where there is a conflict between the Employee’s physician and medical advice being provided to the Employer (i.e. from the Insurance company physician), the Employer is permitted to request an independent or third-party medical examination of the Employee to determine the extent of any accommodation requests.
If an Employee does not cooperate with the Employer’s Return to Work policies, they can be subject to termination of employment. If the Employee’s use of sick time is determined to be dishonest, the Supreme Court has ruled that the 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).
Please remember: DOCUMENTATION IS YOUR FRIEND. Make notes of the dates/times of any discussion(s) you have, what information has been requested from whom and when it should be provided (i.e. forms, follow up meetings).
Contact me for help with your Return to Work issues!