With the rising costs of absences, employers are looking for better ways to manage employee sick time. A critical part of any disability or absence management program is good communication between the employer and the treating physician.
However, employers and physicians approach the same issue from different perspectives. The employer wants to get the employee back to work as quickly as possible, with accommodations as needed, while the physician’s only concern is the health of the patient.
According to employment lawyer Stuart Rudner, a partner at Miller Thomson LLP in Toronto, the information an employer can get from a physician is limited by privacy rights. To ensure employers get the right information, they need to know which questions to ask.
“What I usually counsel employers to do is certainly not to ask for a diagnosis, not to ask for a detailed description of the employee’s condition, but simply to ask for a description of what their restrictions or limitations are vis-à-vis their employment duties,” said Rudner. “That should be all the information the employer needs in order to accommodate them.”
However, employers won’t get any of this information without the employee’s consent.
“If you don’t have the employee’s consent, the doctor won’t speak to the employer,” said employment lawyer Carita Pereira, a partner with Toronto-based law firm Israel Foulon. “The employer can certainly try, but the doctor is bound by his obligations to the patient. Without any consent, they’re not going to provide any information to the employer.”
If an employee comes back to the employer with a doctor’s note that simply states “the employee is unable to attend at work” for a certain number of days, weeks or even months, without any other details, the employer has the right to ask the employee for information to help determine whether or not any accommodations would help the employee return to work sooner, said Pereira.
“Most employers will have an attending physician statement that they’ll give to employees and the employee is required to take it to the attending doctor and have it completed and return it to the employer,” she said.
That form will ask for information about the prognosis, the general nature of the illness or disability, the expected date of when an employee would be fit to return to work and any limitations or restrictions on the employee.
But if employers go the route of asking for more information from a physician, or asking the physician to fill out forms, it should be done consistently and not just when the employer feels an employee might be malingering. Otherwise, the employer becomes vulnerable to legal action, said Rudner.
“The key is not to be arbitrary in the way you approach this. You can’t always ask the same employee for the best possible documentation but let it slide with other people,” he said.
He cited a recent case involving Honda where Kevin Keays, a fired employee in Ontario who suffered from chronic fatigue syndrome, was awarded $500,000 (later cut down to $100,000 on appeal) in punitive damages.
One of the factors in deciding damages was Honda had been particularly onerous in its requirements of a medical note of Keays, perhaps because the employer felt his condition was suspicious, said Rudner. Honda required a medical note every time he was absent, he said.
“Whereas people who were considered to have more mainstream conditions, didn’t have to bring a note every time,” said Rudner. “That to me is just a claim waiting to happen. You can’t discriminate against certain types of people and you can’t discriminate against people with certain types of conditions.”
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