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What do you do when your employees won’t come to work?

In recent years, employers seem to be struggling with “missing employees” that provide vague doctors’ notes and then disappear, assuming their job is safe. What can employers do? Do you have the right to ask for medical information? Can they dismiss the employee if they don’t provide proper justification for their absence?

There is widespread perception among employers that they have no rights and no ability to require additional information or take appropriate steps to manage the absence(s). Many employers are scared of a human rights complaint if they do. However, they should not be. Employers are entitled to appropriate medical information, and employees cannot expect an indefinite “break” simply by producing a one sentence note.

The first thing to remember is that ongoing absences must be supported by appropriate medical documentation. It seems to be surprisingly easy for employees to procure doctor’s notes which provide no substantive information but decree that the employee should remain off work. One of my colleagues in the Employment Law Bar often refers to employees that visit “Dr. Summer-Off” or “Dr. Winter-Off”. The perception among some employees and employers seems to be that such notes are, effectively, “get out of work free” cards, with no further obligation on the part of the employee to justify the absence.

Like many things we deal with in the world of HR, the abuse of sick leave by a small minority requires that employers be extra vigilant with everyone in order to prevent such abuse. When one hears of stories like the office worker who asked her boss for the summer off so she could visit family in Europe, was told that would not be possible due to workload, and then came to work the next day with a medical note stating that she would have to be off work until after Labour Day, one cannot help but become skeptical.

As I often advise clients, employers do not have to blindly accept the doctors’ notes that do not provide any substantive information. While employees with disabilities may be entitled to accommodation, that does not necessarily equate to time off. If an employee is seeking accommodation, they have an obligation to produce medical information setting out the limitations upon their ability to carry out their duties. Simply stated, before an employer can explore accommodation options, they have to know what needs to be accommodated. Employers are not entitled to know the diagnosis, or to demand medical information that goes beyond the impact on the employee’s ability to do their job. They can then assess accommodation options, which may or may not include time off work. In many cases, the employee can be accommodated with modified duties. Most employees with a legitimate disability would prefer to return to work, rather than sit at home.

It is often efficient to provide the employee with a Functional Abilities Form that their doctor must complete, and attach a copy of their job description so that the doctor will have the proper context. The message to an employee that produces a note along the lines of “Joe will be absent from work for medical reasons” should, in many cases, be clear: we are committed to helping our employees return to work by accommodating any condition they may have; in order to accommodate you, we must understand the limitations that your condition creates upon your ability to carry out your duties. The employer can require such information within a reasonable time frame.

What happens when the employee “disappears” or refuses to respond or produce the documentation? At that point, unless there are unusual circumstances, their absence can be deemed to be unauthorized. Failing to return to work or produce documentation justifying the absence can result in termination of the employment relationship.

One final word of caution: it is often tempting to sit back and rely upon the insurer to determine if an ongoing absence is legitimate after the employee applies for disability benefits. However, the issue of whether someone is eligible for disability benefits is distinct from the issue of whether they are medically fit to work. As a result, employers should not withdraw from the situation, nor should they assume that because someone was denied benefits, they are automatically able to return to work.

At the end of the day, remember that the fundamental basis of the employment relationship is an exchange of labour for pay. Legitimate disabilities (broadly defined) are to be accommodated as required by law. However, in order to be entitled to accommodation (including time off work), an employee must produce sufficient medical documentation. If they can’t or won’t, then employers should consider taking a more aggressive approach to the situation. They should not allow themselves to be held hostage by an employee with a one-line note from a friendly doctor.

Stuart Rudner
Miller Thomson LLP

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Rudner Law, Employment / HR Law & Mediation

Employment Lawyers and Mediators at Rudner Law
Rudner Law is a firm specializing in Canadian Employment Law. They provide clients with strategic advice regarding all aspects of the employment relationship, negotiate and advocate on their behalf and represent them before courts, mediators and tribunals. Blog posts are written by Stuart Rudner, the principal and founder of Rudner Law, Brittany Taylor, a Senior Associate at Rudner Law, Nadia Zaman, an Associate at Rudner Law and Anique Dublin, a Law Clerk at Rudner Law. Read more
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