Staff sick on stat holidays?

5 Rules for employers fighting faux fatigue

For Marty Rabinovitch, an employment lawyer with Devry Smith Frank LLP, the Victoria Day long weekend is calm before the storm. Floods of calls come in on the first day back to business; employers call to assess the legality of removing staff who suspiciously extend their long weekends, and employees call in shocked they have been accused of feigning illness for an extra day off.

According to Rabinovitch, neither party has complete clarity on looming legal landmines.

“Employers can easily get frustrated with an employee that they suspect of ‘time theft’ and ask questions that violate privacy rights,” said
Rabinovitch. “While employees feel pressured to answer personal questions, they may inadvertently give employers the grounds for a dismissal case. It’s important that both parties know their rights and act to preserve them.”

To keep things productive, Rabinovitch has compiled a quick reference for employers to keep their working relationships healthy:

Always call back. If an employee leaves a sick message or has someone else call in for him, always call back. This gives the employer an opportunity to ask key questions and document the conversation.

Ask if the employee will be providing a doctor’s note. This is essential to know if there’s a chance you may be getting duped. It’s also important to ask if the employee has seen a doctor to gauge the potential severity of the illness.

Be cautious with questions. Employers have the right to ask questions when an employee calls in sick, but can’t violate the employee’s privacy. A quick rule is to ask questions that lead to “a prognosis, not a diagnosis.” In other words, you have the right to know if the employee will be absent for several days but not to know if they have a serious illness like cancer or suffer from depression.

Accommodate. Is there a way the employee could come in for the day if he was offered frequent breaks or an hour’s sleep?

Call the bluff. If an employee’s excuse doesn’t add up or is not sufficient to warrant a day off, call them in.
“There’s always the option of heading off lost productivity due to sick day sabotage before it starts,” added
Rabinovitch. “Employers can poll staff to see how many want the extra day off and set up a plan to work back the lost time. That way everyone can have a great Victoria Day weekend.”

Devry Smith Frank LLP (DSF) is Toronto’s largest law firm outside of the downtown core. DSF can be contacted at (416) 449-1400 or by visiting

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