Canadian Employment Law Today

STUART McKELVEY HALIFAX Have a question for our experts? Email Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2014 2 | | June 25, 2014 June 25, 2014 with Brian Johnston Ask an Expert Employees who exceed sick day alotment QUESTION: If a company has a set amount of sick days per year, how should it handle employees who exceed that amount? If the employee provides medical documentation, does the company have to allow unpaid sick days without discipline? ANSWER: Typically, when an employer has a set amount of sick days which are ex- ceeded by an employee, the employer, in the early stages, often encourages the employee to use available vacation days or any other leave days — such as accumulated overtime — so that the employee does not suff er a loss of pay for those excess days. However, if such measures are not available, the em- ployer most often will simply not pay the employee for the legitimate sick day. e general expectation is that employees attend work and the employer pays them to work. However, there are exceptions where- by employees are permitted to not attend work and are paid nonetheless — vacation and statutory holidays, for example. Most employers have a sick leave program which allows employees to be compensated for a certain number of days of legitimate illness and not suff er any monetary consequences. However, there are usually limits and sometimes those limits are exceeded. e fact the employee is sick more often than there are available sick days does not create an obligation on the employer to pay more. Rather, the employer typically comes up with some informal arrangement whereby the employee may use, for example, avail- able vacation days or accumulated overtime so as to not suff er any compensatory loss. However, if those measures are not avail- able, the employer does not have to pay the employee. At the same time, typically, employers do not consider that days away from work which are not contemplated by paid sick days justify discipline, so long as the illness is legitimate. In other words, there is no cul- pable behaviour in the employee being ab- sent from work. e employer instead will tend to as- sess the impact of the employee's absences and determine whether non-disciplinary measures should be invoked. ose non- disciplinary measures could conceivably result in a declaration of frustration of the employment relationship because the em- ployee is missing so much time from work that the employment relationship is no lon- ger viable. Refusing pregnant applicant for short-term contract QUESTION: Can an employee refuse to hire a pregnant applicant for a short-term contract position because it is known right off the bat the applicant would not be able to fulfi ll the contract? ANSWER: e answer is yes, the employer can refuse to hire a pregnant applicant for a short-term contract position when it is known she will not be able to fulfi ll the con- tract due to giving birth. Obviously, in making that decision, the employer is diff erentiating in relation to employment based upon a protected char- acteristic under human rights legislation — namely, the fact that the employee is preg- nant. However, the refusal to hire is because the employee cannot do the job. at brings into play the duty to accommodate, which expects that an employer accommodate to the point of undue hardship in relation to an otherwise neutral workplace rule that would have a disproportionate negative impact on an employee because of her protected char- acteristic (in this instance, pregnancy). In such circumstances, a human rights tribunal should be satisfi ed that it would be undue hardship for an employer to hire someone who cannot fulfi ll any part of the job, despite the fact that the refusal to hire was based upon a protected characteristic. Brian Johnston is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@stewartmck- elvey.com. e privacy audit showed the employee had accessed the personal health informa- tion of her friend on May 20. ough her friend was discharged on May 21, the em- ployee accessed the records again on May 23. e employee also accessed the records of her husband, her sister and herself. GBGH had a zero tolerance policy for pri- vacy breaches and it decided to terminate the employee unless she could explain. e employee was interviewed on June 14, where she admitted to accessing her own records and, when asked about her friend's records, she said "you got me" and acknowl- edged it was a privacy breach. e employee explained her husband had diabetes and sometimes test results weren't given to his doctor quickly enough, so she accessed them. She also said her sister had cancer and she wanted to ensure the docu- mentation was transmitted in a timely man- ner to the chemotherapy facility. She ac- cessed her own records to determine if she had the same genetic code for cancer. e employee testifi ed she thought she was part of the "circle of care" for her fam- ily and later realized this wasn't the case. GBGH dismissed her for repeatedly breach- ing its privacy policy on the collection and disclosure of personal health information. e arbitrator found the employee's con- duct in accessing and disclosing personal health information was "serious miscon- duct warranting signifi cant disciplinary sanction." GBGH's policies and privacy leg- islation made it clear how important it was to maintain confi dentiality, and the employ- ee had acknowledged her awareness of the policies by signing her agreement. However, the arbitrator found zero toler- ance wasn't required, as the policy allowed for discipline up to dismissal and the em- ployee's access of information relating to herself and her family might not warrant dismissal, said the arbitrator. However, the arbitrator found the access of the friend's information was more serious. She didn't have the friend's consent, which was a serious breach. On the other hand, the arbitrator noted that it was an emotionally charged situation. e employee also read- ily admitted her actions and acknowledged her wrongdoing, which "speaks to her reha- bilitative potential," said the arbitrator. e arbitrator found the employee was remorseful, appreciated the gravity of her misconduct and would likely not repeat it — she was an 11-year employee with no prior discipline. GBGH was ordered to reinstate her but without compensation for the 22 months since her dismissal, which would be a suspension. See Georgian Bay General Hospital and OPSEU, Local 367 (J.(K.)), Re, 2014 CarswellOnt 5923 (Ont. Arb.). Employee understood seriousness of breach « from HOSPITAL on page 1

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