Sooner or later, everyone has an illness that keeps them from working. Some of those illnesses last longer than others. A large part of the calls I get from employers for advice relate to how they should deal with absent employees.
Employees, too, are often mystified as to what their rights are and what the employer has the right to know when they are absent from work.
For the purposes of today’s discussion, we are going to assume that, whatever the absence or injury, it is not work-related and the employee is not in a union. Here are some basic facts that employees and employers need to know:
1. There is no law anywhere requiring employers to pay employees for time absent from work due to sickness. Some employers do have a sick pay policy. They will pay anywhere from 5 days to 6 months a year in sick pay. Whether or not the employer pays sick pay, it has a right to ensure that the employee’s absence due to illness is medically justified.
2. Except in extremely rare circumstances, an employer should never ask an employee what their actual diagnosis is. The Ontario Human Rights Code, or at least the people who administer it, consider this to be inappropriate.
3. If the employer has 50 or more employees, those employees are entitled to 10 days off per calendar year for their own illness, medical emergencies relating to a wide variety of family members or an “urgent matter” that concerns them. This definition is so broad that employers with 50 or more employees are probably wasting their time asking for any justification for the first 10 days of absence in any calendar year. If the employer does pay sick pay, however, and that sick pay is only payable for the employee’s personal illness, the employer has a right to a doctor’s note to justify the payment. If the note is not forthcoming or satisfactory, however, you cannot discipline, in any way, an employee until the 11th day of absence during a calendar year. Since an employer is not required to pay sick pay in the first place, it has the right to make sure the money is being paid out according to its own policy.
4. For short absences due to illness, a one sentence doctor’s note will usually suffice. It’s not practical to ask for a doctor’s note for every absence, but an employer may choose to put somebody who is chronically absent on notice that future absences due to illness will require a doctor’s note.
5. If an employer has an employee who has been off for an extended period of time and they suspect that the employee is malingering, they can ask for a doctor’s note which confirms explicitly that the employee is suffering from an illness or injury which prevents her from returning to her regular duties. The employer can ask for confirmation from the doctor that the employee is following the prescribed course of treatment, a guess, if possible, as to when the employee may return to work and whether the doctor thinks there is any change to the job or hours of the job that the employer might make to allow the employee to return earlier.
The employer should offer to compensate the employee for the reasonable cost of obtaining the doctor’s note. The letter requesting this information should go to the employee and a deadline of two or three weeks should be set for the return of the note. If the requested doctor’s letter never shows up, the employer should give the employee the benefit of the doubt and send them a reminder letter. It should give them another two weeks to provide the letter and indicate that if the letter is not forthcoming, the employer may take the position that the employee has resigned their employment.
6. If there is still no response, the employer may consider sending a letter stating that they are taking the position that the employee has resigned. This step should never be taken before full consultation with an employment lawyer. There are more exceptions to this guideline than I can discuss in this article. For instance, if the employee’s illness is related to their mental health, a severe case of depression may leave them unable to deal with simple tasks like setting up doctors’ appointments and remembering to get the requested letter from the doctor.
7. If an employer really thinks an employee is malingering but the employee manages to get their doctor to say the appropriate things in a note, they can consider sending the employee to their own doctor for an assessment. This process is expensive and releases would have to be arranged so that the company’s doctor can see the employee’s medical records. The company’s doctor can almost never be asked by the employer what the actual diagnosis is. It can only be asked the questions set out above that the employee’s own doctor was asked to answer.
In any case, where the employee’s illness is related to their mental health, an independent assessment is usually a waste of time. There are no real objective criteria for the company’s physician to test. If the employee indicates they feel depressed, can’t focus, can’t sleep and feel constantly anxious, they have recited most of the symptoms of depression. The company physician will have to take them at their word and the process will have got the employer nowhere.
Whether in dealing with employers or employees, at least half of the absences due to illness that I hear about are stress and/or depression related. Most often these illnesses are very real and extremely debilitating. Employers find these absences frustrating because they cannot see the broken leg or the surgery scars.
Employees suffering from stress or depression are not usually feeling communicative. They do not do a great job of keeping the employer well apprised of their status so that the employer feels satisfied that the employee is not just taking a holiday. Employers dealing with the depressed employee must tread very carefully. Taking the wrong step can land the employer before the Ontario Human Rights Commission in the blink of an eye.
Employees suffering from any illness that keeps them away from work, are well advised to communicate frequently with their employer. If the medical problem is not particularly personal or embarrassing, reveal it even though you don’t have to.
When employees are absent from work, they feel stress and so do their employers. The employer, after all, is the one shuffling people power around to cover the absence and trying to keep the business running. Good communication on both sides will avoid most problems.