By Jeffrey R. Smith
It’s a fact of life — people get sick.
Depending on the workplace, temporary absences due to illness might be easily absorbed by existing staff or the employer might have to scramble to cover the absence. Either way, employers want to avoid situations where employees are abusing sick days.
Some employers take the approach of having a specified amount of sick days per year and, if an employee exceeds that allotment, the employee might be given a warning or be required to provide a doctor’s note for any more absences. Others might have an open-ended amount of sick days, but would still warn the employee if she accumulated too many sick days.
Employment standards legislation in some jurisdictions provides unpaid emergency leave that can be allowed for illness, but may require an employee to back it up with a doctor’s note. For example, Ontario’s Employment Standards Act, 2000, stipulates personal emergency leave can be used for “personal illness, injury or medical emergency,” if the employee provides documentation.
But how long should an employer wait before an employee provides a doctor’s note backing up an absence? Last year, an Ontario employer dismissed an employee who exceeded the employer’s absence allowance of 10 per cent of scheduled shifts for absences unsupported by a doctor’s note. However, the employee’s last absence was because of a headache for which he sought a doctor’s treatment. He obtained a note and was going to provide it on his next scheduled shift two weeks later, but the employer fired him before that shift. After some cancelled grievance meetings, the employee finally provided the note four months later, but the employer said it was too late.
An arbitrator agreed the employee should have handed in the note sooner, but found the note proved the absence was for a personal illness, which qualified it as personal emergency leave under Ontario’s employment standards legislation. As a result, the last absence shouldn’t have been counted under the employer’s 10 per cent absence threshold and ordered the employer to reinstate the employee.
It makes sense that if the employee had proof his last absence was for a legitimate medical issue, he shouldn’t be penalized for it. However, even though he was dismissed before he could hand in the note, he could have provided it at any time. Four months seems like a long time for the employer to wait for it. By that point, the employer has likely moved on and perhaps made staffing decisions based on the termination. Should an employer be expected to accept a doctor’s note such a long time after an absence? What is the threshold for the amount of time an employer should accept such documentation?
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com. For more information, visit www.employmentlawtoday.com.