Inability to ask for doctor’s note could cripple employers (Editor’s notes)

When absences are excessive, employers need to be able to ask for a note

Everyone plays hooky now and again. It’s a simple fact of life, for students in elementary school right up to the top chief executive officers in the country. (Present company excluded, of course.)

When you’re a kid or a teenager, it’s a pretty easy process. Just dial up your best Ferris Bueller impression and convince mom and dad that your stomach really does hurt. Or that you feel all weak and achy. Or that you suffer from whatever ailment you can conjure up to avoid going to school so you can stay home and play with toys and video games all day.

You won’t win a Juno or an Oscar for these performances — after all, most parents aren’t doctors and have soft spots for their offspring — but hopefully you can fool them into thinking you’re sick enough to stay home, but not quite under the weather enough to warrant a trip to the doctor’s office.

And once you’ve convinced your parents, you get that magical get-out-of-jail-free card in the form of a note from mom that you bring to school the next day to explain your absence, no questions asked.

The process is pretty similar in the working world. Except that, since we’re all grown-ups, the prerequisite note from mom to explain an absence is waived. Employers give workers credit for behaving like adults and not abusing the system. After all, line managers, supervisors and HR professionals aren’t medical professionals. They pretty much have to take employees at their word when they phone in and say, “I’m sick. I can’t make it in today.”

The system works pretty well. But when absences start to become excessive, when it gets in the way of doing business, employers need to be able to step in and ask for a note. An explanation from an expert, relatively independent third party — a medical professional — helps clear things up.

That system also works well. But a court ruling out of Ontario has put the practice of requesting a doctor’s note from an employee with a disability into a bit of a grey area. As outlined on page 1 of this issue, the Ontario Superior Court of Justice ruled in a case involving Honda that its requirement for a doctor’s note for every absence of an employee who suffered from chronic fatigue syndrome was “discriminatory” and “impractical.”

Honda appealed to the Ontario Court of Appeal, and was successful in having punitive damages reduced, but the question of whether it was ever okay to ask an employee with a disability for a doctor’s note was left hanging.

The Human Resources Professionals Association of Ontario (HRPAO), to its credit, was watching this case closely. It saw a potential problem brewing for employers and HR professionals. Because the decision, as it stood, could be interpreted — and followed by other courts — to mean an employer could never ask an employee with a disability for a doctor’s note to explain an absence.

So last month HRPAO went to Ottawa, armed with lawyers, and made arguments in front of the top court in the country. It wanted to bring this potential problem to the Supreme Court of Canada’s attention so that when it renders a decision (Honda appealed the Ontario Court of Appeal’s ruling to the Supreme Court) it will hopefully address and correct this issue.

This isn’t to say that asking employees for a doctor’s note in every instance will be justifiable. But to give employees with disabilities carte blanche to miss work, without any onus to provide a legitimate explanation, is setting the bar too high when it comes to an employer’s duty to accommodate.

It opens the door for abuse far too wide. There are a vast range of diseases that qualify as disabilities, and justifiably so. And workers with disabilities deserve accommodation. But there shouldn’t be a blank cheque for all workers with disabilities to be absent from work whenever they want, without explanation.

Looking at the facts of the case involving Kevin Keays, the Honda worker who suffered from chronic fatigue syndrome, it’s easy to see why the court ruled the way it did. In his case, asking for a doctor’s note for every absence exacerbated the problem. And, ultimately, it wasn’t in the employer’s best interest — even if Honda didn’t quite get that — because it simply made Keays miss even more work than he should have.

Most problems are best dealt with on a case-by-case basis. That’s how courts handle wrongful dismissal. It would be easy to come up with a simple mathematical formula to calculate how much severance is enough when an employer terminates a worker without cause, but courts have resisted this idea. Instead, judges prefer to weigh the facts of each case to come up with a fair number.

The issue of doctors’ notes for disabled workers should be no different. Employers should be able to weigh the merits of each individual employee’s situation to determine whether or not a note is warranted, regardless of whether the worker has a disability.

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