Canadian Employment Law Today

STUART McKELVEY HALIFAX Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2018 2 | May 23, 2018 with Brian Johnston Ask an Expert Answer: e answer to the first question is presumptively no — an employer gener- ally cannot discipline an employee or warn an employee of potential discipline because the employee is calling in sick too much (absent culpable absenteeism) and surpass- es the sick day allotment. Nonetheless, the employer should have a discussion with the employee to explain that she has exceeded the sick day allot- ment and therefore the employee will not be compensated for further sick days (un- less, for example, the employee can draw on banked vacation days). is would not be disciplinary. e employer can also com- municate to the employee that attendance is important — or, depending on the cir- cumstances, critical — and the employee should be mindful of her health. Where applicable, it may be a good opportunity to remind the employee of any employee as- sistance programs. e employer should continue to closely monitor this situation should it persist. Ter- mination for innocent absenteeism (medi- cally justified absenteeism) is prima facie dis- crimination — however, it can be justifiable where there is no reasonable prospect of im- proved attendance in the future and accom- modation would impose undue hardship on the employer: see the 2008 Supreme Court of Canada decision in Syndicat des employé-e- s de techniques professionnelles & de bureau d'Hydro-Québec, section 2000 (SCFP-FTQ) c. Corbeil. In such a case, the employment con- tract would be frustrated and the employer would have discharged its duty to accommo- date to the point of undue hardship. Of course, not all absenteeism is inno- cent. If there is evidence of sick leave abuse, such as a pattern of sick leave being taken around weekends or after holidays, it may be an indicator that an employee is abusing sick time and not genuinely ill. Where an employer is satisfied that it is a case of cul- pable absenteeism, it can impose progres- sive discipline. Finally, in terms of medical documenta- tion, the amount or frequency with which an employer can require depends on the cir- cumstances and jurisdiction. For example, recent legislative amendments in Ontario have limited an employer's ability to require a medical certificate for sick days protected under the province's Employment Stan- dards Act, 2000. A provincially-regulated Ontario employer may only require an em- ployee who takes leave under this section to provide evidence "reasonable in the cir- cumstances" that she is entitled to leave, but "shall not require an employee to provide a certificate from a qualified health practitio- ner." Note that this provision is limited to ten total days in a calendar year — up to two paid and eight unpaid. Practically speaking, even where it is permissible, most employers do not find it useful to require that all sick days be indi- vidually supported, as it is a burden. For more information see: • Syndicat des employé-e-s de techniques professionnelles & de bureau d'Hydro- Québec, section 2000 (SCFP-FTQ) c. Cor- beil, 2008 CarswellQue 6436 (S.C.C.). Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Employee calling in sick too much Question: If an employee is calling in sick too much and surpasses the sick day allotment provided to employees, can the employer discipline the employee, or at least warn the employee of potential discipline? Can medical documentation be required if all the absences are separate sick days? Ask an Expert STEWART MCKELVEY, HALIFAX Benefits buyout? Question: When an employee is fired without cause, can the employer buy out the entitlement to benefits during the notice period? Answer: It depends on the jurisdiction and legal basis for the notice period in question. Most jurisdictions have statutory mini- mum notice periods, but employees are normally entitled to an extended notice pe- riod at common law (reasonable notice or compensation in lieu). With respect to the statutory notice pe- riod, it depends on whether the particular jurisdiction requires benefits continuation during this period. For example, Ontario employment standards legislation stipulates that during the statutory notice period the employer "shall continue to make whatever benefit plan contributions would be required to be made in order to maintain the employ- ee's benefits under the plan until the end of the notice period." As a result, benefit con- tinuation is mandatory in Ontario through the statutory notice period. To the extent of any inconsistency, legislation trumps con- tractual agreements to the contrary. By way of contrast, there is no similar requirement in the Nova Scotia employ- ment standards legislation. erefore, in Nova Scotia and some other jurisdictions, benefit continuation during the statutory notice period can be treated in the same way as during any extended common law notice period. ere is no absolute legal entitlement to benefit continuation during any extended common law reasonable notice period. However, during any such notice period, an employer is required to make the employee "whole" with respect to any compensa- tion — including benefits — that would have been received during that period but for the termination of employment. If an agreement can be reached, an employer can "buy out" the employee's entitlement to benefits during the reasonable notice period. For example, the employer could be more generous in terms of the notice period duration or with some other benefit, such as job transition counselling, and not provide benefits. Contractual agreements can replace entitlements that would other- wise apply at common law. If no agreement can be reached, employ- ers should be aware that if coverage is none- theless discontinued during the notice pe- riod, it is taking a risk should the employee fall ill with a condition that would have been covered, thereby incurring a loss. In that case, the employer could be liable for the expenses that the employee would have been entitled to under the benefits plan. For example, in Brito v. Canac Kitchens, no agreement was reached and after long- term disability benefits were discontinued at the end of the statutory notice period, the employee became permanently disabled during the extended common law notice period. e employer was held liable for the long-term disability the employee would have received had the benefits not been cancelled (not just the premiums). In that case, the employer was liable for a decade's worth of long-term disability benefits, be- cause the employee was 55 years old and coverage would have continued until the age of 65. For more information see: • Brito v. Canac Kitchens, 2012 CarswellOnt 760 (Ont. C.A.). Brian Johnston, Q.C., is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@ stewartmckelvey.com.

• Cover