Question: If an employer knows an employee’s absence is due to a medical condition, but the employee doesn’t respond to requests to provide medical documentation supporting the absence or return date, how long must the employer wait?
Answer: The short answer is — it depends.
Generally speaking, there is no bright-line rule setting out how long an employer must wait to receive medical information before issuing discipline for an unsubstantiated absence. The analysis is contextual.
For example, in a unionized work environment, a collective agreement may mandate the length of time an employer must wait before issuing discipline, as well as the types of discipline the employer can issue.
Federally regulated employers should be aware the Canada Labour Code places restrictions on discipline when an employee is absent from work due to work-related or non-work-related illness or injury.
One thing is clear: The road to termination on the basis of an unsubstantiated absence can be a long one. In Calgary Co-operative Assn. v. U.C.C.E., an employee was dismissed for failing to provide medical documentation to substantiate an ongoing absence. The arbitrator determined the employer had just cause to issue some form of discipline on the basis of the following factors:
•The absence extended beyond the date supported by medical documentation.
• Multiple requests were made for additional information.
•A clear warning was issued that failure to provide updated information would result in discipline.
•No reason, medical or otherwise, precluded the provision of the information or a return to work.
In determining the penalty of discharge was appropriate, the arbitrator found the employee’s discipline-free years of service and legitimate illness were outweighed by aggravating factors; in particular, the deliberate withholding of medical information by the employee and the union.
An employer should also ensure it can establish disability is not a factor in the decision to discipline, and the employer has not breached its duty to accommodate. In Baber v. York Region District School Board, the employee, absent from work due to illness, alleged that in terminating her employment, the school board discriminated against her by failing to accommodate her disability-related needs.
The employee had been absent for months and, despite multiple requests and a warning that failure to participate could result in termination, failed to provide adequate medical information to substantiate her absence or support accommodation.
The Human Rights Tribunal of Ontario found the duty to accommodate did not permit the employee to refuse the employer’s legitimate requests for information, nor did it require the employer to tolerate an ongoing unsubstantiated absence. The application was dismissed.
To help employers navigate these often murky waters, consider these best practices:
•Make multiple written requests for medical information. This is key to demonstrating the employer is appropriately managing absenteeism and the accommodation process.
•Try to confirm the employee’s receipt of the request for information. If a request is being made via email, request a read receipt and keep records.
•Specify a deadline for delivery of the requested information, but ensure the time period is reasonable.
•Clearly communicate the type of medical information required. For example, indicate that a note from a physician stating the employee is “unfit for work” but providing no further information is insufficient. Be sure not to request a diagnosis, as this is not permissible to ask.
•Provide the employee with a letter for his physician containing specific questions with regard to medical restrictions, the possibility of modified duties, and the expected return-to-work date. If possible, enclose the employee’s job description. Providing an overview of an employee’s daily responsibilities may assist the physician to determine medical restrictions and evaluate the potential for return to work.
•In each request for medical information, ensure the employee is advised he has a legal obligation to participate in the accommodation process. If an employee fails to respond, ensure followup requests make clear that failure to provide information could result in discipline up to and including termination. This is particularly important as decision-makers will typically inquire whether the employee knew he would be disciplined for failing to provide the medical information.
For more information see:
•Calgary Co-operative Assn. v. U.C.C.E., 2012 CarswellAlta 941 (Alta. Arb.).
•Baber v. York Region District School Board, 2011 HRTO 213 (Ont. Human Rights Trib.).
Natasha Zervoudakis is a lawyer at Sherrard Kuzz, a management-side employment and labour law firm in Toronto. She can be reached at (416) 603-0700 (main), (416) 420-0738 (24 hours) or by visiting www.sherrardkuzz.com.
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