Canadian Employment Law Today

May 28, 2014

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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with Colin Gibson Ask an Expert HARRIS AND COMPANY VANCOUVER Have a question for our experts? Email Have a question for our experts? Email Canadian HR Reporter, a Thomson Reuters business 2014 2 | | May 28, 2014 May 28, 2014 Sick Leave and WCB Claims QUESTION: One of our employees was injured at work and submitted a workers' compensation claim. The employee then gave us a medical note and requested paid sick leave. Does an employer have the right to turn down a sick leave claim when an employee has been injured at work? Should the employer accept medical documentation from an employee if workers'compensation is being sought? ANSWER: An employee's right to paid sick leave will be determined by the terms of the applicable employment contract or collec- tive agreement. If an employee is injured at work, she may be entitled to receive paid sick leave pending adjudication of her workers' compensation (WCB) claim. If the WCB claim is subse- quently accepted, the employer should be able to obtain reimbursement of the sick leave it has paid out. Where an employee goes off on sick leave, the employer will, in most cases, be entitled to request medical evidence to support the employee's need to take time off work and claim paid sick leave. Employers are entitled to request certain types of medical information from employ- ees, where such information is needed for the employer to manage its business. Of course, an employer's right to request medi- cal information in a particular situation will be subject to the provisions of the applicable legislation, as well as any collective agree- ment, employment contract or policy. In de- termining the scope of an employer's right to request medical information, arbitrators, courts and adjudicators will seek to strike a reasonable balance between the employer's business needs and employee's privacy. What sort of medical information can an employer ask for? e normal threshold is for employees to provide suffi cient infor- mation to demonstrate that their absence is bona fi de or their recovery is suffi cient to permit them to return to work. e authori- ties generally agree an employer can proper- ly require an employee to provide a medical certifi cate describing: • the general nature of her illness or disabil- ity • the prognosis • the expected date when the employee will be fi t to return to work • any limitations or restrictions the employ- ee will be under upon her return • in the case of a return to work, evidence that the employee is fi t to return to her du- ties. Where the employee is seeking an ex- tended sick leave, the employer may be en- titled to seek the following additional infor- mation: • confi rmation the attending physician's opinion is based on a current examination of the employee • information as to whether a treatment plan has been prescribed for the employee and whether that plan is being followed • information concerning medical follow ups • expected capabilities upon return to work. In most cases, an employer will not be permitted to request information regard- ing the employee's specifi c diagnosis. e arbitral authorities make it clear an em- ployer must provide compelling evidence to demonstrate the reasonableness of such a request. Where medical information is sought, employers must be mindful of their obliga- tions under the applicable federal or provin- cial privacy statutes, which impose limits on the collection, use and disclosure of person- al information in the public and private sec- tors. In addition, workers' compensation, employment insurance, pension and hu- man rights legislation may contain specifi c obligations with respect to the confi dential- ity and privacy of personal information. Under these statutory regimes, medical information is generally considered to be one of the most sensitive types of personal information. e principles underlying privacy legislation are based on the same themes evident in the arbitral jurisprudence on employee medical information, such as consent, reasonableness of purpose, limited disclosure and balancing of interests. British Columbia's Personal Information Protection Act, for example, allows private sector employers to collect and use employ- ee personal information (including medical information) without an employee's con- sent if that information is necessary for "the purposes of establishing, managing or ter- minating an employment relationship be- tween the organization and the individual". Employers are required to give employees notice of the use they intend to make of an employee's personal information. Where information is highly sensitive, employers should be prepared to justify their collec- tion and use of medical information in rela- tion to the requirement that it is necessary for the administration of the employment relationship. Generally, only those persons who are involved in determining whether sick leave benefi ts should be granted or those who are in charge of deciding whether an employee may return to work should be entitled to review an employee's medical information, such as details on the employee's condition. e employer must also ensure that all med- ical information is secured and protected from unauthorized access or disclosure. Public opposition to union organizing QUESTION: Can an employer publicly oppose a union organizing drive without interfering with the employees' right to organize? ANSWER: Labour relations statutes in all Canadian jurisdictions contain unfair la- bour practice provisions that are designed to prevent employers from interfering in union organizing campaigns at their workplace. Employers are prohibited, for example, from dismissing or disciplining employees because they have engaged in union activities or from using coercion or intimidation to persuade employees to op- pose unionization. Having said that, employers are not re- quired to remain completely silent during union organizing campaigns. All Canadian labour statutes give employers at least some ability to communicate with their employ- ees while union organizing is underway. However, the nature and extent of an em- ployer's communication rights vary be- tween provinces. In British Columbia, the Labour Rela- tions Code was amended in 2002 to broaden an employer's right to express its views dur- ing certifi cation and decertifi cation cam- paigns. While coercion and intimidation are still prohibited, B.C. employers now have an expanded right to communicate their opin- ions about union representation. In Conver- gys Customer Management Canada Inc. v. B.C.G.E.U., the B.C. Labour Relations Board stated: "Taken as the whole, the Legislature's amendments to sections 2, 6(1) and 8 re- fl ect important judgments about the abil- ity of employees to make free choices about union representation, despite attempts to infl uence their decision-making through the expression of views that are not coercive or intimidating. e amendments refl ect the confi dence that a reasonable employee can make inquiries and assess these views, knowing that most often, their employer will view their participation in a union and collective bargaining as contrary to the em- ployer's self-interest. Hence, the expression of non-coercive or non-intimidating views CONSIDERATION on page 6 »

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