Tools for Employers in dealing with sick employees

Employee absences due to illness inevitably affect productivity and the health of any business. Of course, some absences are inevitable but sometimes employers start to suspect that the system is being abused. Admittedly, the tools available to employers to deal with an employee who is absent unnecessarily due to a claimed illness are limited. Given how limited they are, employers should at least be familiar with the basics:
 
  1. There is no law anywhere requiring employers to pay employees for time they are absent due to illness. If an employer does have a policy of paying a certain amount of sick days per year, they can put whatever conditions they want, within reason, on payment of sick pay.
 
You can’t fire an employee for not revealing the diagnosis of their illness and if sick pay is not an issue, an employer should never ask. An employer has every right, however, to tell the employee that if they don’t reveal the diagnosis they won’t get the sick pay. The choice is up to the employee.
 
Having said that, employers should refrain from asking for the diagnosis until the abuse of the system has become fairly clear.
 
  1. If the employer has a medical benefits plan and the employee contributes part of the premiums to that plan, just because they are off sick does not mean they don’t have to pay their part of the benefits cost. Although this wouldn’t apply to short term illnesses, an employee who was off for a month or more can be told that if they don’t submit a cheque for their part of the premiums, the benefits will end. A clear warning is necessary before benefits are cut off.
 
  1. Consider not only asking for a note from a doctor confirming that the absence is due to a medical condition but also asking for a note at the end of the leave clearing the employee for a return to work if the absence is for more than a week or two. Anyone sick enough to be away from work that long should be seeing the doctor more than once and getting this note should not be an issue. If it is an issue, that may indicate that something is up.
 
  1. Remember that employers with 50 or more employees are obliged to allow ten emergency days per calendar year. That emergency day can be taken as a result of “an urgent matter” that concerns the employee or a wide variety of family relations. Translation: they can take ten days a year for almost any reason at all since nobody has defined what “an urgent matter” is and the employer might as well suffer in silence rather than trying to validate the reasons. This means that for employers with 50 employees or more, no disciplinary action whatsoever can be taken for the first ten days of absence in a calendar year whether or not a doctor’s note is provided. Employers are not required to pay wages for these days.
 
  1. Never ,ever, fire an employee immediately after they return from an absence due to illness that is of any significant duration. Unless you can prove that the termination was unrelated to the absence, and it will be the employer’s onus to prove that, the assumption will be made that the employee was terminated because of their illness and/or absence. The employee can then file a human rights complaint and what would have been a normal severance package can suddenly become much more expensive for the employer.
 
  1. Employees absent due to illness must be returned to their pre-disability position and any accommodation documented by the doctor that is required of the employer must be followed unless to do so would be an undue hardship.
 
The employer can get a second opinion about the accommodation if they like. The employee must, with the accommodation, still be able to perform the core functions of their job. Beyond that, establishing an undue hardship is extremely difficult and can’t be defined here. Employers don’t have to fire anyone other than a replacement employee to return the employee to their position and they don’t have to pay for work they don’t need or create an extra position that would not otherwise exist.
 
These aren’t all the things an employer needs to know but it’s a good start. Fortunately, most employees don’t abuse the system and the employer is not forced to take an aggressive stance with every employee who is off sick.
 
Obviously, it’s just as important that employees are aware of the points I have made above so that they understand what employers can and can’t do when there are absences due to illness.
 
Through all of this, employers should remember that most employees are absent for real illnesses that are no fault of their own. Don’t jump to the conclusion that the system is being abused. It’s important to support employees who are struggling with illness. Remember, they are also getting backlash from their co-workers who have to pick up the slack when they are absent. It may sound maudlin but I am going to conclude by reminding employers and co-workers to treat the absent employee on their return to work like they would want to be treated if they were away through no fault of their own.
 
 As published in the Hamilton Spectator, August 30, 2008
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com