Canadian HR Reporter

February 2020 CAN

Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.

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www.hrreporter.com 27 the workplace, you may have some difficult decisions to make. For one, how do you address the misconduct? If it's about an employee's poor performance and they have provided no information, you are free to administer discipline, since the employee has done nothing to suggest that their behaviour is non-culpable. In such cases, receiving disciplinary corrective action may open an employee's eyes and result in them disclosing an illness. A more drastic response to a refusal to co-operate may be appropriate when the employee is in a safety-sensitive position and poses a reasonable safety risk. The removal of the employee on non-disciplinary grounds may be required for the employer to meet its obligations under safety legislation. When a problem is disclosed If an employee discloses that she is experiencing a problem, it's unlikely she'll be disciplined at this stage because that would be discrimination if the misconduct in question results from a disability. However, the presence of a disability does not automatically exclude the use of discipline. A non-disciplinary approach is required only when a causal connection between the condition and the misconduct is established. When there is no connection, the employee cannot rely on the disability to escape punishment. For example, there are a number of cases where employees have stolen items from the workplace and blamed their misconduct on an addiction. If they're unable to prove that the addiction caused the misconduct, discipline is an appropriate response. If medical evidence reveals that addiction was a contributing factor in the misconduct — but not the sole cause — a hybrid approach of both disciplinary and accommodation efforts may be appropriate. If the addiction alone compelled the misconduct, a purely accommodation- based approach is required. Requesting medical information The first step after an employee discloses a need for help is usually to request supporting medical documentation, unless the employer and employee can reach an accommodation agreement that satisfies both parties. The employer is entitled to ask for certain medical information, and if the request is reasonable, the employee has an obligation to provide it. But there are limitations — an employer is entitled to medical information needed to: • confirm the existence of a condition and the need to provide accommodation • understand the employee's condition and its restrictions on them • understand what will and will not work for a workplace accommodation. Requests for a diagnosis, test results, details of prescriptions or medical history should be avoided because they are not necessary to implement a workplace accommodation. In many cases, the employer does not need to know what a condition is called in order to accommodate, especially at the outset. But if an accommodation is lengthy and complex, employers will have more leeway in requesting information. An employee does have an absolute right to keep their confidential medical information private. However, if this thwarts an employer's obligations or makes it impossible for an employer to provide appropriate accommodation, the employer is entitled to hold the employee out of the workplace. An employee has no right to accommodation unless they provide sufficient, reliable evidence of a disability. If you have obtained medical information deeming accommodation to be necessary and proposed a suitable accommodation that the employee refuses, discipline is an appropriate response to address the misconduct. If an employee is refusing to report to work as directed and there is no medical reason that the individual cannot do their job, then there is just cause for discipline, up to and including termination. CHRR All based in Winnipeg at MLT Aikins, Bret Lercher is an associate, David Negus is a partner, Devin Wehrle is an associate, Kristin Gibson is a partner, Sarah Carr is an associate and Shandra Czarnecki is a partner. For more information, visit www.mltaikins.com. Look for an alteration in an employee's past mood or behaviour that is material enough for you to conclude that they aren't just having a bad day or two.

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