Sick leave, medical documentation and performance management
By Stuart Rudner and Nadia Zaman
If you are from Ontario, you have probably heard about the significant changes to employment laws in the past couple of years. In November 2017, the Fair Workplaces, Better Jobs Act, 2017 (Bill 148) was passed into law with dramatic amendments to employment laws, including those relating to personal emergency leave, sick days and bereavement.
However, the next year, Premier Doug Ford announced: “We’re getting rid of Bill 148. We’re going to make sure we’re competitive around the world.” What did these words mean?
Well, in October 2018, the Making Ontario Open for Business Act, 2018 (Bill 47) was introduced. Bill 47 repeals many provisions of Bill 148. For example, Bill 148 entitled employees to 10 personal emergency leave days per calendar year, the first two of which must be paid.
In addition, employers were not entitled to require medical documentation to support absences. Bill 47 changed that by reducing employee entitlement to three unpaid sick days, three additional unpaid sick days for illnesses/emergencies relating to family members, and two unpaid bereavement days. Further, under Bill 47, there is no prohibition on the requirement of medical documentation to support absences. To learn more about Bill 47, read our blog post here.
So where do we stand now when it comes to sick leave? When can employers require medical documents? And how can employers manage employees’ performance?
Most employees in Ontario have the right to take up to three days of sick leave each calendar year, whether they are employed on a full-time or a part-time basis. Sick leave is unpaid job-protected leave due to a personal illness, injury or medical emergency. Special rules apply to some occupations.
This entitlement to sick leave begins once an employee has worked for an employer for at least two consecutive weeks. Of course, if an employment contract provides a greater right or benefit than the sick leave standard under the Employment Standards Act, 2000 (the ESA), then the contractual terms will be applicable. Otherwise, the sick leave standard under the ESA is applicable.
Typically, an employee is required to inform her employer before starting the sick leave she will be taking. In situations where an employee has to begin the leave before notifying the employer, the employee must inform the employer as soon as possible after starting it.
However, even if an employee does not inform the employer, the employee will not lose the right to take the leave.
Proof of entitlement
An employer may require an employee to provide evidence “reasonable in the circumstances” that they are eligible for sick leave. What will be reasonable in the circumstances will depend on the situation as a whole, such as the duration of the leave, whether there is a pattern of absences, whether any evidence is available and the cost of the evidence.
If it is “reasonable in the circumstances”, an employer may even require an employee to provide a medical note from a health practitioner such as a doctor, nurse practitioner or psychologist when the employee is taking a sick leave.
Employers are prohibited from asking for information about the diagnosis or treatment of the employee’s medical condition. The employer is only allowed to ask for the following information:
The duration or expected duration of the absence.
The date the employee was seen by a health care professional.
Whether the patient was examined in person by the health-care professional issuing the note.
Employers often face the difficult situation of dealing with an employee who goes on sick leave before his performance issues can be addressed. What should an employer do then?
In these circumstances, we usually advise employers to hold off on performance management or termination. Otherwise, there is a risk that the employer could be accused of breaching the employee’s human rights by penalizing him for going on sick leave.
In addition, there is a risk that any discipline or termination could worsen the employee’s medical condition, thereby potentially increasing any damages the employee may be entitled to.
The reality is that the sick leave does not have to be the only reason for discipline in order to found a human rights claim; if it was even a tiny part of the reason for the employer’s actions, it will face liability. And, of course, even if it successfully defends a human rights claim, it will be an expensive process with legal fees that cannot be recovered.
While this may be frustrating for some employers, it is usually better to wait until the employee’s sick leave ends to impose any kind of discipline or to terminate their employment, even if that is done with a severance package.
Any discipline or dismissal decisions should be made after careful consideration and after receiving legal advice. There can be significant risk, especially if it turns out that the employee’s medical condition has been contributing to his performance issues. In such situations, the employer may have a duty to accommodate.
Employers should ensure they have written policies in place regarding the various statutorily protected leaves of absences (such as sick leaves). While an employer may require an employee to provide a medical note when the employee is taking sick leave if it is “reasonable in the circumstances,” employers should be cautious in requiring employees to provide a doctor’s note for every absence or face discipline as this may have a disproportionate impact on employees with disabilities.
Employers should also ensure they have written policies and procedures regarding accommodation and discipline, and performance management. Discipline should be based on objective criteria and range from verbal and written warnings to termination.
Employers would be well-advised to have a progressive performance management approach that takes into account accommodation needs, and is applied and documented in a consistent manner.
Before imposing discipline or termination, employers should consider whether the employee’s actions are caused by a disability, especially where the employer knows or ought to know she has a disability. For instance, if there’s a dramatic change in an employee’s behaviour, that could signal that an employer should inquire further into the reasons behind such change.
Nadia Zaman is an associate at Rudner Law in Toronto.