Canadian Employment Law Today

January 8, 2014 Ask an Expert with Tim Mitchell Norton Rose Fulbright, Calgary Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Employee illness during probationary period Question: If a new employee becomes ill during a probationary period before the employee is eligible for sick leave or vacation, can the employer place her on unpaid leave? If the illness continues until the end of the probationary period, can the employer extend the probationary period (and the ineligibility for benefits) so it can properly evaluate the employee once she returns? Answer: If an employee is too ill to work and does not meet the employer's eligibility for short-term disability (STD) benefits, an unpaid leave of absence is usually a reasonable form of accommodation. So long as the employee receives no adverse treatment in terms and conditions of employment that imply discrimination on the basis of the illness, placing the employee on unpaid leave while the employee recovers is legitimate from a management perspective. In addition to complying with human rights requirements, the employer must also take care to ensure its measures comply with governing employment standards legislation in its jurisdiction. While the Alberta Employment Standards Code does not speak to sick days specifically, other jurisdictions have rules that may impact the situation. Federally, for example, the Canada Labour Code contains provisions requiring an employer to continue employment benefits during periods of sick leave in certain circumstances. The rules governing the employer's group health plan will speak to eligibility as well. As for extending the probationary period, this will, in many cases, violate employment standards legislation. In Alberta, the province's Employment Standards Code provides for a three-month statutory probationary period, as do many other employment standards statutes. During 2 this three-month period — or whatever the indicated length of the probationary period — a dismissed employee is not entitled to termination pay on dismissal. If the employment contract or offer letter stipulates likewise, the employee will not be entitled to common law reasonable notice, either. Extending the probationary period is problematic since employment is continuous while an employee is off sick, whether on paid or unpaid leave. Dismissal beyond the statutory probationary period without notice or pay in lieu of notice will violate the employee's employment standards entitlement to termination notice or pay in lieu thereof. Requiring a doctor's note immediately Question: If a doctor's note is required from the employee for a one-day absence, can the employer require the note to be provided and dated the same day the employee is absent? Answer: Practically speaking, not really. The concern underlying the question is understandable. Accommodation requires Extending the probationary period is problematic since employment is continuous while the employee is off sick. an obligation by both the employer and the employee. While an employer must accommodate a physical disability to the point of undue hardship, the employee has a corresponding duty to substantiate the claim that she suffers from a disability requiring accommodation. The employer is entitled to this proof in the form of objective medical evidence. What, then, should prevent an employer from insisting the employee undergo evaluation on the day of the absence, when the examination results will be most reliable? Most employees who are home sick use the time off to rest and recover. An employer looking to enforce such a policy will inevitably face an employee claiming she is too sick to leave the house. In the face of such protest, an employer is unwise to insist she attend the doctor's office anyway. Another practical issue sure to arise is the difficulty for the employee of arranging to see a medical professional that very day. Both of these claims are hard to refute and make such an arrangement difficult. Realistically, not much is lost from the lack of feasibility of such a policy. It is true the medical evidence obtained later will be outdated by a day or two — or possibly more — and therefore more subjective than the employer would prefer. However, the employer may actually be doing itself a favour by giving some leeway on this requirement. Considering the accommodation duties on the part of the employer, it should steer clear of any appearance that it actually contributed to an employee's deteriorating health, such as by insisting that the employee, no matter how ill, attend a doctor's office during a one-day absence — not to mention potentially adversely affecting the employee's emotional state, which can be tied to her physical health. This could be highly prejudicial later on in the event the employee's health and the employer's response become issues of contention. Tim Mitchell is a partner with Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or Tim.Mitchell@nortonrosefulbright.com WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as family status accommodation, young workers and the law, gender expression and identity in the workplace, best hiring practices, social media in the workplace, and accommodating people with disabilities. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. Published by Canadian HR Reporter, a Thomson Reuters business 2014

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