Canadian Employment Law Today

Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com with Stuart Rudner Ask an Expert RUDNER MaCDONALD TORONTO Canadian HR Reporter, a Thomson Reuters business 2015 2 | October 14, 2015 Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Questioning the legitimacy of doctor's notes Question: If an employer is concerned an employee's doctor is simply filling out notes to cover for absences even if the employee isn't really sick, can the employer refuse to accept the note, even if it's a legitimate doctor's note? Answer: eoretically, an employer may refuse a medical note that does not provide sufficient detail concerning the reason for absence. Past cases have even held that an employee's failure to comply with an employ- er's reasonable direction to produce doctor's notes justifying prolonged absences amount- ed to just cause for dismissal. is line of rea- soning, however, comes with a few caveats. Firstly, it must be reasonable for the em- ployer to refuse a doctor's note in the cir- cumstances. In order to regulate employee attendance, employers generally have the discretion to request a more detailed medi- cal certificate if they feel a doctor's note is in- sufficient or just covering up an employee's long term absence. Conversely, an employer who relentlessly harasses an employee for further doctors' notes in every instance of illness or absence for a brief time may be viewed as acting unreasonably in court. Unreasonable refusals, particularly where the employer was aware of a past history of illness but chose to ignore it, can lead to messy situations should the decision be later challenged in front of an adjudicator. Fur- thermore, employers must be aware of em- ployee rights under the Occupational Health and Safety Act to refuse "unsafe work," which can include refusing to work where a com- municable disease, such as the flu, is present in the workplace, or being compelled to work where they are unfit to do so. us if your em- ployee who seems to be skipping out on work actually turns out to be ill when called in, you may be creating an even larger mess by pro- viding a basis for them, or other coworkers concerned about falling ill, to refuse work. An employer must also be mindful of the human rights considerations that come into play in these situations. Employers have a duty to accommodate disabilities, which may include illnesses causing long-term absenc- es, up to the point of undue hardship. Ac- commodation, however, does not necessarily require time off. While an employee may as- sume they are entitled to be "off sick", an em- ployer is entitled to understand the need for accommodation and assess whether other forms of accommodation, such as modified hours or duties, are reasonable. For example, an employee with a broken leg is not entitled to decide that they will stay home. However, if their job involves physical activity, some ac- commodation will likely be appropriate. With all of the above in mind, the best course of action in this scenario would be to ask the employee's healthcare provider for additional information regarding the specific limitations upon her ability to carry out her job function. e employer is not entitled to a diagnosis or other medical information, but is entitled to this information in order to as- sess the employee's ability to accommodate. And an employee cannot simultaneously demand accommodation while refusing rea- sonable requests for such information. Stuart Rudner is a founding partner of Rud- ner MacDonald LLP, a Toronto-based em- ployment law firm. He is author of You're Fired: Just Cause for Dismissal in Canada, published by Carswell, a omson Reuters business. He can be reached at srudner@ rudnermacdonald.com. Stuart gratefully acknowledges with assistance from Richa Sandill, Law Student, with the preparation of this article. Paying an employee for a single-day trip Question: If an employee is flying to another city for a meeting and back on the same day, does the travel time count as work time? That is, from leaving home early in the morning, waiting, flying, taxi to site, the meeting, and then back again, — is the whole day "deemed work?" Answer: According to Regulation 285/01 of the Ontario Employment Standards Act, 2000, (ESA) recognized work time is when an employee is either: actually performing work for the employer, or not performing work but nonetheless required to stay at the workplace. e three exceptions to this rule are eating periods, time in-between shifts to sleep, and when the employee is conducting her own private affairs over the course of the normal workday. Two forms of travel time have been distin- guished in the ESA as well as in court and labour arbitration decisions. e time an employee spends travelling to and from her normal work location to home each day is classified as "commuting time" and does not generally count as recognized work time. Conversely, the second category of travel time — travel directed by the employer or in the course of employment — is considered to be time worked. In other words, once an employee arrives at her workplace, any sub- sequent travel she conducts for her job up to the point where she leaves for home at the end of the day will equate to work time. Out-of-town meetings are a unique form of the second category. A day dedicated to an out-of-town meeting lacks the normal com- mute time and concrete "workplace" that aids in the distinction. Cases have instead held the entire day, including journeying to the airport, waiting and returning to con- stitute one continuous work period until the employee has arrived back home. Professional development conferences may seem less related to work than a client meeting, yet they too count as work time. e courts have reasoned that the travel is under- taken for the employer's benefit. In other words, did the employer direct the travel? Was the employee attending the conference at the request of supervisors, or as part of an ongoing requirement to build professional development hours? Did the employer make the travel arrangements and encourage at- tendance at a professional conference? Meal breaks, sleeping periods, and rest times, however, will remain separate from work time even when the travel time itself can be counted. us, an employee's jour- ney to a client meeting, the meeting itself, and the return time would be counted as work since it is at the behest of the employer; however if the employee chooses to stop for dinner or lunch along the way, that would be treated as a normal, non-compensable break unless otherwise stipulated in an employ- ment contract. e Ontario ESA regulation also makes note of standards established by contract, custom, or practice. erefore it will be help- ful for you to develop a clear policy in place with regards to professional development and whether overtime will be applicable on days that include travel. is is particularly useful for occupations with high levels of mobility, such as sales, delivery, and trans- port. In the absence of specific workplace policies, adjudicators have made decisions on overtime and pay entitlements on the basis of employer practices of signing off on time that includes travel to various work locations, for example. Set the bar early on with your employees to avoid confusion.

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