Over the years, I have witnessed many of my firm’s clients struggle to manage absenteeism while respecting the privacy of their employees as well as any illnesses or disabilities that they may face. Employers are often at a loss as to how to ensure employees who take sick days are really sick and not simply abusing the system. They are often scared to ask for doctor’s notes, but also scared that if they don’t, the abuse will become rampant. I often encourage employers to consider abandoning the notion of sick days altogether, and simply provide a fixed number of “personal days”, which eliminates the implicit or explicit requirement that an individual be sick in order to have time off.
In the infamous Keays v. Honda Canada case, I was lucky enough to represent the Human Resources Professionals Association when they intervened at the Supreme Court of Canada hearing. Our submissions were relatively simple: we asked the Court to confirm that the mere act of asking an employee with a known disability to provide doctor’s notes in order to justify workplace absences did not constitute a failure to accommodate. The submission was made in light of comments in the trial judge’s decision that seemed to equate the requirement of doctor’s notes in such circumstances to an act of bad faith. Fortunately, the Supreme Court was receptive to our submissions and confirmed that, in and of itself, requiring doctor’s notes, even for an employee with a known disability, does not constitute a failure to accommodate or an act of bad faith.
Employers are often faced with doctor’s notes that say something along the lines of “Joe was absent from work yesterday for medical reasons”. Or, perhaps even worse, “Joe advises that he missed work yesterday as he was sick”. In both cases, employers are left scratching their heads, unsure as to whether or not there was a valid reason for the individual’s absence.
At the same time, most employers recognize that individuals sometimes need time off for reasons entirely unrelated to sickness. They may have to take a child to an appointment or an activity; they may have to travel for a family function; they may simply need some time to catch up on personal errands. Many employers conclude that employees “abuse” sick days for these reasons.
I, and others, have suggested that employers simply formalize this reality by providing a certain number of personal days each year. Rather than tying the absence to illness, employers can simply provide their employees with time off in order to look after their personal responsibilities. The personal days can be lumped into vacation time, as long as it is administered properly, or simply offered as additional time off. Each employer can assess what is reasonable for its operations and workforce and establish its own policy accordingly.
I don’t mean to suggest that this is a perfect solution. Realistically, most employees will see this as a “perk” that should be used, and will make sure to take every single day off, whether they need to or not. That said, whether or not the personal days are paid or unpaid will certainly be a factor for many employees. Just as organizations assess how much vacation time to provide, they can assess whether providing personal days is realistic, and if so, how much they can provide. Doing so can eliminate the monitoring that is necessary to address abuse of sick days.
If employers do continue to provide designated sick days, I encourage them not to unnecessarily restrict themselves. I often see sick leave policies that provide that the employer can require a doctor’s note for absences of a certain number of days, usually three. However, we have all seen the employees that seem to become sick on the Fridays before long weekends. If the policy in place only allows the employer to require a doctor’s note for absences of three days or more, then they will not be able to insist that the employee justify his mysterious extra-long weekends with medical documentation. When I ask clients why they put that policy in place, they typically have no explanation. It is far more effective to give the organization the discretion to require appropriate documentation. So long as the discretion is not used in a manner that is discriminatory or for the purpose of harassing employees, employers will be able to manage absences more effectively.
There is no right or wrong answer in dealing with this issue. I would welcome comments as to what readers have tried, and whether the measures have succeeded.
Miller Thomson LLP