Handling a sick leave claim when the employee submits a workers' compensation claim
Question: One of our employees was injured at work and submitted a workers’ compensation claim. The employee then gave us a medical note and requested paid sick leave. Does an employer have the right to turn down a sick leave claim when an employee has been injured at work? Should the employer accept medical documentation from an employee if workers’compensation is being sought?
Answer: An employee’s right to paid sick leave will be determined by the terms of the applicable employment contract or collective agreement.
If an employee is injured at work, she may be entitled to receive paid sick leave pending adjudication of her workers’ compensation (WCB) claim. If the WCB claim is subsequently accepted, the employer should be able to obtain reimbursement of the sick leave it has paid out.
Where an employee goes off on sick leave, the employer will, in most cases, be entitled to request medical evidence to support the employee’s need to take time off work and claim paid sick leave.
Employers are entitled to request certain types of medical information from employees, where such information is needed for the employer to manage its business. Of course, an employer’s right to request medical information in a particular situation will be subject to the provisions of the applicable legislation, as well as any collective agreement, employment contract or policy. In determining the scope of an employer’s right to request medical information, arbitrators, courts and adjudicators will seek to strike a reasonable balance between the employer’s business needs and employee’s privacy.
What sort of medical information can an employer ask for? The normal threshold is for employees to provide sufficient information to demonstrate that their absence is bona fide or their recovery is sufficient to permit them to return to work. The authorities generally agree an employer can properly require an employee to provide a medical certificate describing:
• the general nature of her illness or disability
• the prognosis|
• the expected date when the employee will be fit to return to work
• any limitations or restrictions the employee will be under upon her return
• in the case of a return to work, evidence that the employee is fit to return to her duties.
Where the employee is seeking an extended sick leave, the employer may be entitled to seek the following additional information:
• confirmation the attending physician’s opinion is based on a current examination of the employee
• information as to whether a treatment plan has been prescribed for the employee and whether that plan is being followed
• information concerning medical follow ups
• expected capabilities upon return to work.
In most cases, an employer will not be permitted to request information regarding the employee’s specific diagnosis. The arbitral authorities make it clear an employer must provide compelling evidence to demonstrate the reasonableness of such a request.
Where medical information is sought, employers must be mindful of their obligations under the applicable federal or provincial privacy statutes, which impose limits on the collection, use and disclosure of personal information in the public and private sectors. In addition, workers’ compensation, employment insurance, pension and human rights legislation may contain specific obligations with respect to the confidentiality and privacy of personal information.
Under these statutory regimes, medical information is generally considered to be one of the most sensitive types of personal information. The principles underlying privacy legislation are based on the same themes evident in the arbitral jurisprudence on employee medical information, such as consent, reasonableness of purpose, limited disclosure and balancing of interests.
British Columbia’s Personal Information Protection Act, for example, allows private sector employers to collect and use employee personal information (including medical information) without an employee’s consent if that information is necessary for “the purposes of establishing, managing or terminating an employment relationship between the organization and the individual”.
Employers are required to give employees notice of the use they intend to make of an employee’s personal information. Where information is highly sensitive, employers should be prepared to justify their collection and use of medical information in relation to the requirement that it is necessary for the administration of the employment relationship.
Generally, only those persons who are involved in determining whether sick leave benefits should be granted or those who are in charge of deciding whether an employee may return to work should be entitled to review an employee’s medical information, such as details on the employee’s condition. The employer must also ensure that all medical information is secured and protected from unauthorized access or disclosure.
