Canadian Employment Law Today

Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2016 2 | November 9, 2016 with Natasha Zervoudakis Ask an Expert Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com 2 | November 23, 2016 Canadian HR Reporter, a Thomson Reuters business 2016 Waiting for medical documentation of absences Question: If the employer is aware an employee's absence is due to a medical condition but the employee doesn't respond to requests to provide medical documentation supporting the absence or return date, how long must the employer wait? He said, she said Question: Should an employer issue discipline if it is aware of misconduct but has no actual evidence other than hearsay that isn't any more reliable than the suspected employee's denials? Answer: Whenever there is an allegation of misconduct, an employer should conduct an investigation before making the decision to discipline. Issuing discipline without reliable evidence is risky and not recommended. For the results of the investigation to be reliable and, if challenged, defensible, it must be performed by someone with train- ing or experience performing investiga- tions, and the investigator cannot be, or be seen to be, biased. Dismissal of an employee based on a faulty investigation could leave the em- ployer open to signifi cant liability beyond wrongful dismissal damages. In Elgert v. Home Hardware Stores Ltd., the employer dismissed a 17-year employee after con- ducting an investigation into allegations of sexual harassment. A jury found the employee was wrongfully dismissed and, in addition to awarding 24 months' notice, awarded $60,000 for defamation, $200,000 in aggravated damages and $300,000 for punitive damages. On appeal, the Alberta Court of Appeal set aside the aggravated Answer: e short answer is — it depends. Generally speaking, there is no bright-line rule setting out how long an employer must wait to receive medical information before issuing discipline for an unsubstantiated ab- sence. e analysis is contextual. For example, in a unionized work environ- ment, a collective agreement may mandate the length of time an employer must wait be- fore issuing discipline, as well as the types of discipline the employer can issue. Federally regulated employers should be aware the Canada Labour Code places re- strictions on discipline when an employee is absent from work due to work-related or non-work-related illness or injury. One thing is clear: the road to termination on the basis of an unsubstantiated absence can be a long one. In Calgary Co-operative Assn. v. U.C.C.E., an employee was dismissed for failing to provide medical documenta- tion to substantiate an ongoing absence. e arbitrator determined the employer had just cause to issue some form of discipline on the basis of the following factors: • e absence extended beyond the date supported by medical documentation. • Multiple requests were made for addition- al information. • A clear warning was issued that failure to provide updated information would result in discipline. • No reason, medical or otherwise, preclud- ed the provision of the information or a re- turn to work. In determining the penalty of discharge was appropriate, the arbitrator found the employee's discipline-free, long service and legitimate illness, were outweighed by ag- gravating factors, in particular, the deliber- ate withholding of medical information by the employee and the union. An employer should also ensure it can es- tablish disability was not a factor in the deci- sion to discipline and the employer has not breached its duty to accommodate. In Ba- ber v. York Region District School Board, the employee, absent from work due to illness, alleged that in terminating her employment the school board discriminated against her by failing to accommodate her disability-re- lated needs. e employee had been absent for months and, despite multiple requests and a warning that failure to participate could result in termination, failed to provide adequate medical information to substan- tiate her absence or support accommoda- tion. e Human Rights Tribunal of Ontario found the duty to accommodate did not per- mit the employee to refuse the employer's le- gitimate requests for information, nor did it require the employer to tolerate an ongoing unsubstantiated absence. e application was dismissed. To help employers navigate these often murky waters, consider these best practices: Make multiple written requests for medical information. is is key to demon- strating the employer is appropriately man- aging absenteeism and the accommodation process. Try to confi rm the employee's receipt of the request for information. If a request is being made via e-mail, request a read receipt and keep records. Specify a deadline for delivery of the re- quested information, but ensure the time period is reasonable. Clearly communicate the type of medi- cal information required. For example, in- dicate that a note from a physician stating the employee is "unfi t for work" but providing no further information will be insuffi cient. Be sure not to request a diagnosis, as this is not permissible for an employer to seek. Provide the employee with a letter for his physician containing specifi c ques- tions with regard to medical restrictions, the possibility of modifi ed duties, and the expected return-to-work date. If possible, enclose the employee's job description. Pro- viding an overview of an employee's daily responsibilities may assist the physician to determine medical restrictions and evaluate the potential for return to work. Ensure in each request for medical information, the employee is advised that he has a legal obligation to participate in the accommodation process. If an employee fails to respond, ensure follow up requests make clear that failure to provide information could result in discipline up to and including termination. is is particularly important, as decision-makers will typically inquire whether the employee knew he would be disciplined for failing to provide the medical information. For more information see: • Calgary Co-operative Assn. v. U.C.C.E., 2012 CarswellAlta 941 (Alta. Arb.). • Baber v. York Region District School Board, 2011 HRTO 213 (Ont. Human Rights Trib.). ABSOLUTE on page 9 » SHERRARD KUZZ LLP TORONTO Employers don't have the right to request a diagnosis, but deserve information indicating the employee's ability to work or expected return to work.

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