ABSENT FOR MEDICAL REASONS: MANAGING ILLNESS AND

DISABILITY-RELATED ABSENCES

Lior Samfiru, Partnerlior@stlawyers.ca

Agenda

1. Employer/Employee workplace obligations

2. Obtaining medical information

3. Requiring independent medical exam

4. Frustration of contract

5. Questions

Dealing With Employee Medical Absences

NOW WHAT???

NOW WHAT???

Dealing With Employee Medical Absences

LEGAL OBLIGATIONS - Employer•Must allow employee to take time off for legitimate medical absences, verified by physician•Must provide accommodation of medical condition•Must keep job open and available to employee – unless undue hardship.•What to do before accommodation can be assessed•Does not have to continue benefit coverage (subject to contract or collective agreement)

Dealing With Employee Medical Absences

EMPLOYER, DO:

• Listen to the Employee

• Work with the Employee

• Make business needs known

• Ask for medical information from Employee’s physicians

• Tolerate absenteeism that is disability related

• Accept a modified work schedule that is reasonable

• Be sensitive to Employee concerns

• Keep medical information confidential – Need to Know Only

Dealing With Employee Medical Absences

EMPLOYER, DON’T:

• Harass the employee for medical information

• Prefer employer’s opinion over medical opinion

• Send the employee to a company doctor, unless exceptional circumstances

• Treat the employee as if she/he is malingering

• Discipline for disability related absence

•Intimidate or bully the employee

•Refuse to deal with employee’s lawyer

Dealing With Employee Medical Absences

LEGAL OBLIGATIONS - Employee•The search for accommodation in the workplace is a multi-party responsibility •An employee seeking accommodation has three responsibilities:

1. to actively cooperate with the employer and/or the union in identifying possible modes of accommodation;

2. to offer a reasonable explanation for his or her refusal to accept a proposed accommodation; and

3. to accept a reasonable proposal that meets the employer’s operational requirements

Dealing With Employee Medical Absences

Obtaining Medical InformationWhen are you entitled to medical information and how much can you get?•Whenever an employee asserts a medical basis for absence or seeks to return to work after a period of absence due to illness or disability•Only to the extent that the evidence is relevant to the employment relationship

Dealing With Employee Medical Absences

Obtaining Medical Information•Subject to any collective agreement limitations, ask for medical information when an employee asserts medical reasons for an absence or seeks a return to work after a medical absence•Generally, the employer is entitled to know whether the employee is fit, unfit, or fit with limitations•If not satisfied with information, seek further clarification

Dealing With Employee Medical Absences

Information Employer is Entitled to:

• Prognosis for recovery, with or without limitations

• Opinion with respect to fitness to return to work and to perform specific components of job

• Expected duration of any limitations or restrictions

• If completely disabled, details of prognosis with respect to return to work

Dealing With Employee Medical Absences

Obtaining Medical Information

What should you keep in mind when communicating with medical practitioners or the employee?

•Do you have the employee’s consent?•Do you have a questionnaire?•Do you have the job description or physical demands analysis?•Always practice tact and diplomacy.

Dealing With Employee Medical Absences

Obtaining Medical InformationRemember the lesson in Prinzo v. Baycrest

•Employee absent from work for several months and unfit to perform her job•Employer persistently urged a return to work, implying (incorrectly) that her doctor had cleared her to return to work•Employee’s lawyer wrote to employer demanding that employer not communicate with her directly in future, but employer persisted•When the employee did return to work, the employer insisted on having a discussion about terminating her employment despite her protests that she was in no condition to address the subject•Result: Prinzo was awarded damages for “intentional infliction of mental suffering”

Dealing With Employee Medical Absences

Obtaining Medical InformationWhat if the employee provides you with a flimsy doctor’s note?•Ask for more•Explain why you need more•Get the information you require•Be reasonable; do not be a pest

Dealing With Employee Medical Absences

Obtaining Medical InformationHow can you verify “invisible” conditions (e.g. stress, CFS, non-organic pain)?•Not all ailments have observable symptoms•What is the context? Good employee with good record or some basis for scepticism?•Continue to insist on medical reporting•Be reasonable; do not be a cynic•If conflicting medical documentation, ask for independent examination

Dealing With Employee Medical Absences

Independent Medical ExaminationCan you compel an employee to be examined by a doctor of your choosing?•You can request an IME•Absent agreement or authority (e.g. collective agreement), you cannot compel an IME•Inadequate medical information + refusal to undergo reasonable IMA may = rightful dismissal, but be patient

Dealing With Employee Medical Absences

Independent Medical ExaminationRequest IME When:•An employee leaves the day before (or after) disciplinary meeting•A medical condition is such that a specialist’s opinion is required•LTD insurer says one thing and employee doctor says another•Absence is particularly costly

Dealing With Employee Medical Absences

Confidentiality•Keep medical information separate from the personnel file •Provide written guidelines with respect to collection, retention, storage, security, access, disclosure, and destruction of health records to all personnel having access to health records•Transfer of medical records requires consent•Generally, handling medical information is extremely sensitive and must be kept in a secure environment

Dealing With Employee Medical Absences

Frustration of Employment Contract

In some situations - due to a lengthy absence, allowing employer to treat relationship as being at an end.

•Would have to be very lengthy absence (usually measured in years)

•Not likely to return to work in the future

•If employer has disability plan, lengthy absence within the contemplation of the parties

•Remember: must still pay statutory termination entitlements!

Dealing With Employee Medical Absences

Frustration of Contract

You may be sufficiently frustrated if:

•Absence is significant in comparison total service

•No contact from employee or repeated extensions to leave

•You have medical information to indicate that employee not likely to return

•You have advised employee of impending end of relationship

•Absence causes you financial or administrative difficulties

Dealing With Employee Medical Absences

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QUESTIONS?

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Lior Samfiru, Partner - lior@stlawyers.ca