Canadian HR Reporter

CANADIAN HR REPORTER CANADIAN HR REPORTER February 24, 2014 February 24, 2014 INSIGHT INSIGHT 23 23 Ryan Treleaven Toughest HR Question Scott Wooder Guest Commentary On doctor's notes, there has to be a better way On doctor's notes, there has to be a better way In 28 years, I've rarely denied anyone a sick note – and requiring them creates shocking waste In 28 years, I've rarely denied anyone a sick note – and requiring them creates shocking waste Requiring sick notes for absent employees might seem like a good idea from an HR perspective, but consider it from my van- tage point — I've been a family doctor for the past 28 years and I probably see an av- erage of two patients per day who are only there for illness documentation. at's two extra patients crowd- ing my waiting room, possibly spreading the flu to pregnant women, cancer patients and small children. And for what? In 28 years, I've rarely denied anyone a sick note. If a patient says they've been vomit- ing or have a sore throat or other- wise feel terrible, of course I take them at their word. If I'm typical — and I have no reason to doubt it — the waste this creates is shocking. Even one sick- note patient per day times 12,500 family doctors in Ontario times roughly $35 per visit equals far too much money down the drain of our health-care system — funds that could be spent on medical ad- vances or improving the quality of care. Over the years, I've also noticed that an increasing number of patients require a sick note for even one day of missed work. This is a harsh and irresponsible policy, not least because it forces a sick patient out of bed and into contact with others at the very height of their illness. Many work for small and medium-sized companies, often in low-wage positions, and they tell me they don't get paid for even one sick day. ere has to be a better way. In my other capacity as presi- dent of the Ontario Medical As- sociation (OMA), I spend a great deal of time worrying about how to make our health-care system sustainable in the face of a grow- ing and aging population. And how to make sure we have the resources to pay for the excit- ing new medical treatments and equipment coming online. Polls show health care is the most im- portant priority for the Ontario public. We can't aff ord to squander any more health-care resources forc- ing doctors to police absenteeism on behalf of industry. Maybe that's why this issue hit a nerve when I spoke out about it last month to a couple of reporters. Within a day, I found my remarks had gone viral. Judging from the online comments and other feedback, the public is onside with doctors. It's not that I don't understand concerns over absenteeism. As a physician, I'm a small business owner myself. I agree that if an illness drags on, medical documentation is warranted. That's why I'm happy to sit down with industry to find a better way of dealing with the sick-note issue. There's a body of research on this issue that can be explored. We can look to other jurisdictions for guidelines and laws that have worked. But let's do something — it's in everyone's best interest. Scott Wooder is president of the On- tario Medical Association, which represents the province's physicians, medical students and residents. He is a doctor with a practice based in Stoney Creek, Ont. For more informa- tion, visit www.oma.org. Managing travel risks for employees Managing travel risks for employees QUESTION: We often send employ- ees around the country and across the world for business. What obligations do we have to ensure the worker is safe while travelling? Answer: Some commentators have struck an alarmist tone, pointing to risks posed by terror- ism, natural disasters and civil un- rest. While these examples under- score the potential severity of the issue, they fail to acknowledge the more common risks. e truth is, whether on a trip to North Korea or across town, there is risk asso- ciated with travel that employers cannot ignore. To identify and minimize risk, a best practice is to design, imple- ment and consistently apply a travel risk management policy (TRMP). is will not only help protect employees from a range of travel risks but demonstrate the employer has turned its mind to the issue of protecting employees during business travel. Criminal liability Since 2004, when Bill C-45 was enacted, an organization and its senior offi cers can be held crimi- nally liable for their acts or omis- sions as they relate to occupation- al health and safety. e Criminal Code of Canada states: "Every one who under- takes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task." e potential consequences of conviction under the Criminal Code are extreme, including life imprisonment for individuals and unlimited fi nes for corpora- tions. e Ontario Court of Ap- peal has accepted the concept of "corporate capital punishment" by endorsing fines that could, in appropriate circumstances, force an off ending company into bankruptcy. With that said, the code only applies to conduct representing a marked and substantial departure from that of a reasonably prudent employer. Charges are therefore reserved for morally blameworthy conduct that amounts to wanton and reckless disregard for the lives and safety of employees. OHS legislation Separate and distinct from Crimi- nal Code liability are an employ- er's obligations under provincial occupational health and safety legislation. In Ontario, the Oc- cupational Health and Safety Act (OHSA) defines workplace as "any land, premises, location or thing at, upon, in or near which a worker works." In other words, as a worker travels so too does the workplace, as well as the employ- er's duty to keep that workplace safe and free of violence, harass- ment or bullying. In a recent Ontario Court of Justice decision, an employee who was required to travel through Ontario was killed when he inter- acted with a piece of equipment known by his employer to be faulty. In making a fi nding against the employer, the court reiterated that an employer has a duty to not send an employees into a danger- ous situation. In contrast to criminal off ences — which require morally blame worthy conduct and a "marked departure" from the reasonable employer — under the OHSA, the intentions of the employer are not relevant and the threshold for a violation is much lower. An em- ployer will be found to have vio- lated the OHSA if it fails to meet a reasonable employer standard. e corollary is an employer can escape OHSA liability through a due diligence defence by dem- onstrating it took all reasonable precautions. OHSA obligations are typically enforced through fi nes, to a maximum of $25,000 per off ence for individuals and $500,000 per off ence for corpora- tions. In extreme circumstances, individuals can be sentenced to up to 12 months in prison. Civil action Employees injured in the work- place may be entitled to workers' compensation benefi ts, in which case the employee is barred from bringing a legal action against the employer. is includes an employee injured while on busi- ness travel outside the province and internationally for up to six months in Ontario, for example (or as extended by the province's Workplace Safety and Insurance Board). If an employee is injured in the course of business travel at a time when her employer is not regis- tered and in good standing with the workers' compensation board, the employee may bring a civil ac- tion against her employer. An employee travelling inter- nationally is subject to the laws of the land. Many countries have specifi c legislation addressing an employer's duty to protect its em- ployees, including for example, the United Kingdom's Corporate Manslaughter and Corporate Homicide Act. Under this act, an employer may be held criminally and fi nancially liable for a failure to provide for the security and safety of its employee. Given the prominence of Lon- don as a business centre and transportation hub for air travel, this act is potentially applicable to a vast number of employers. TRMPs So what can an employer do to manage this risk? One important step is implementing a compre- hensive workplace TRMP, tai- lored to the specifi c workplace. An eff ective policy should address at least three core principles: Proactive assessment of risk: A common mistake employers make is believing their group in- surance plan or employee assis- tance program (EAP) suffi ciently addresses business travel needs. However, these programs are only engaged after an incident occurs. An eff ective TRMP should be proactive in managing the risks posed by business travel and in- clude the following components: •Information package/briefi ng: Employees should be provided with an information package or briefi ng before they depart, in- cluding a detailed itinerary, con- tingency plan and information regarding specifi c risks of the destination or travel route. For employees travelling with- in Ontario or Canada, relevant information may include: the lo- cation and contact information of approved lodging locations; updated weather reports and road conditions; and any unique features of the area, particularly if the employee will be travelling through remote regions without dependable mobile service. International travel gives rise to additional considerations, including: the current political and weather climate; the loca- tion and contact information of friendly consulates and embas- sies; a summary of unusual or noteworthy local laws or cultur- al/regional norms; and informa- tion relevant to obtaining timely medical attention in the case of an emergency. Some useful resources include the Canadian Centre for Occupa- tional Health and Safety and the government of Canada's travel advisories directory and embassy and consulate directory. •Check-in protocol/employee tracking: Regardless of where an employee may be travelling, it is important the employer know her location at all times, particu- larly in the case of an unexpected emergency. Depending on the situation, the appropriate proto- col could be as simple as sending an email upon arrival, up to and including GPS tracking on em- ployees and equipment. •Technology assessment: Con- sider what technology or other safety equipment are necessary. Smartphones and tablets are not merely convenient business tools — they can be crucial safe- ty devices. At a minimum, there should be confi rmation these de- vices will have service wherever the employee is travelling. If not, consider a contingency commu- nication plan. An interdisciplinary TRMP team: ere is a temptation with- in organizations to view travel risk management as a human re- sources issue. While your HR de- partment will be heavily involved, a comprehensive TRMP may require active participation from various players or departments. For example, department managers may be responsible for check-in protocols, IT to ensure the necessary mobile technology is available, and fi nance to ensure suffi cient funding is in place. An employer should ensure key play- ers have the skill and ability to carry out the policy. A written policy, applied and enforced consistently: As in the case of any workplace policy, to be of maximum benefi t a TRMP should be written, clearly commu- nicated and consistently enforced. It should also include a feedback component so it can be improved on an ongoing basis. An employee should sign an acknowledgment confirming her understanding of the policy prior to departure, including an acknowledgement that a viola- tion of the policy may result in discipline, up to and including termination. Ryan Treleaven is a lawyer at Sher- rard Kuzz, a Toronto-based employ- ment and labour law fi rm, represent- ing management. He can be reached at (416) 603-0700 or visit www.sher- rardkuzz.com for more information. at's two extra patients crowding my waiting room, possibly spreading the fl u to pregnant women and cancer patients.

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