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Jumping to conclusions

Overzealous sick leave management can have ill results

By Jeffrey R. Smith

Employees are the lifeblood of businesses. Whether it’s a small business where each individual worker performs essential tasks, or a large company where many workers cumulatively keep production going, most businesses can’t run without employees.

Which makes it understandable that businesses want to have their employees at work as much as possible to keep things running smoothly. Time off, like vacation leave, is ideally planned out to accommodate employee absences. But sick leave usually can’t be planned for and can create hiccups in the daily course of business.

Employees who can’t come to work because they’ve fallen ill can cause varying degrees of problems — whether the annoyance of having to arrange for a replacement or putting productivity at risk during the absence. It makes sense that employers would want to limit sick leave as much as possible — and make sure employees don’t abuse it. Methods to control sick leave can range from sick day limits to providing medical documentation, such as doctor’s notes.

But while employees can abuse sick leave, employers must be careful not to be overzealous in trying to catch them — in most cases of sick leave, employees really are sick.

Recently, a Saskatchewan mining company was taken to arbitration over its dismissal of a mine worker for dishonesty in taking sick leave. The worker had taken sick leave — with medical documentation — for stress and anxiety. However, the employer was suspicious of the sick leave because it coincided with a period of time that the worker had requested for vacation but was denied, so the employer conducted surveillance of the worker.

The worker was observed performing landscaping work for a business he kept on the side when he wasn’t working at the mine. The employer determined the worker was lying about his ability to perform work at the mine since he was able to perform manual labour at home, and fired him for “dishonesty and duplicity.”

However, the arbitrator ordered the employer to reinstate the employee with compensation for loss of pay and benefits, because the company failed to prove the worker wasn’t sick. The worker wasn’t on sick leave because of physical disability, but rather for stress and anxiety which would affect his ability to work in the mine — his job involved operating heavy machinery and required focus and concentration. The landscaping work was considered nowhere near as demanding as the mine work, said the worker, and the arbitrator agreed.

When an employer suspects an employee of abusing sick leave, it should understand why the employee is on sick leave. This is particularly important because instances of employees taking sick leaves because of mental injuries are increasing and employers should take them as seriously as physical injuries.

Ensuring employees only take legitimate sick leaves is important to running a business and keeping productivity up, but so is avoiding jumping to conclusions and risking legal trouble. As with any investigation, the focus should be on discovering the facts, not trying to prove suspicions.

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Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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